Appears in 14 contracts

Sources: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Master Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the Company, the Issuer and the ~~Seller~~ Sellers herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company, the Issuer and the ~~Seller~~ Sellers made pursuant to the provisions thereof, to the performance by the Company, the Issuer and the ~~Seller~~ Sellers in all material respects of their obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to the Company, a certificate, dated the Closing Date, of an authorized officer of the Company in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared ~~and remains~~ effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to ~~the~~ each Seller, a certificate, dated the Closing Date, of an authorized officer of ~~the~~ 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 ~~the~~ such Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) ~~the~~ 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 Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of ~~the~~ such Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general ~~counsel, chief~~ counsel ~~for transactions,~~ or ~~senior~~ associate general counsel of Capital One Bank ~~(USA)~~and Capital One, ~~National Association,~~ F.S.B. or such other legal counsel that Capital One Bank ~~(USA)~~and Capital One, ~~National Association~~ F.S.B. may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank ~~(USA), National Association~~ has been duly incorporated and is a ~~national~~ banking ~~association~~ corporation under the laws of the Commonwealth of Virginia, and Capital One, F.S.B., is a federal savings bank chartered under the laws of the United States, and ~~the Bank~~ each Seller has, in all material respects, the corporate power to own its assets and operate its business as described in the ~~Disclosure Materials~~Preliminary Prospectus and the Prospectus, and ~~the Bank~~ each Seller had at all relevant times and now has, the corporate power to acquire, own and service the Receivables. (ii) ~~The~~ 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 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 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 Preliminary Prospectus and the Prospectus. (iii) Each Seller has the corporate power to execute and deliver ~~each~~ the applicable Receivables Purchase Agreement, the Pooling and Servicing Agreement (in the case of the ~~Program Agreements to which it is a party~~Bank), this Agreement and the applicable Terms Agreement, and to consummate the transactions set forth herein and therein. (~~iii~~iv) The Company has the limited liability company power 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 set forth herein and therein. (v) Each of this Agreement, the ~~Program Agreements to which~~ applicable Terms Agreement, the ~~Seller is a party~~ 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 ~~the~~ each Seller and has been duly executed and delivered by ~~the~~ each Seller. (ivvi) Each of this Agreement, the ~~Program Agreements to which~~ applicable Terms Agreement, the ~~Company is a party~~ 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. (vvii) No consent, approval, authorization or order of, or filing with, any ~~United States~~ Virginia governmental agency or authority or any ~~United States federal~~ Virginia court is required on the part of ~~the~~ each Seller under ~~United States federal~~ applicable Virginia banking or other Virginia law for the consummation by each Seller of the transactions set forth in this Agreement, the ~~Program Agreements to which it is a party~~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 ~~Agreement~~ Agreements or the Pooling and Servicing Agreement. (viviii) No consent, approval, authorization or order of, or filing with, any ~~United States~~ Virginia governmental agency or authority or any ~~United States federal~~ Virginia court is required on the part of the Company under ~~United States federal~~ applicable Virginia limited liability company or Virginia law for the consummation by the Company of the transactions set forth in this Agreement, the ~~Program Agreements to which it is a party~~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. (~~vii~~ix) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of each Seller under United States federal law for the consummation of the transactions set forth 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 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 authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth 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 and delivery by each of the ~~Seller~~ Sellers and the ~~Company, as applicable,~~ Company of the ~~Program~~ Agreements to which it is a party or the performance by each of the Sellers and the Company of its obligations under the Agreements to which it is a party, ~~or the performance by each of the Seller and the Company of its obligations thereunder,~~ nor the transfer by the ~~Seller~~ Bank of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the ~~Bank~~ Bank, Capital One, F.S.B. or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to Virginia banking, Virginia limited liability company or other ▇▇▇▇▇▇▇▇ ▇▇▇▇ or United States federal law, of any Virginia or United States court, regulatory body, or administrative or governmental agency having jurisdiction over ~~the~~ each Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which each of the ~~Seller~~ Sellers or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (~~viii~~xii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of this Agreement, the ~~Program Agreements~~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 or the consummation of any of the transactions set forth by this Agreement, the ~~Program Agreements~~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 ~~Program Agreements~~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 Preliminary Prospectus or the Prospectus under the headings ~~“Prospectus~~ “ Summary of Terms – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion ~~or opinions~~ of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ~~and~~ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Company and the ~~Seller~~Sellers, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing ~~Agreement, the Asset Representations Review Agreement, the Transfer~~ Agreement and the applicable Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the ~~Seller~~ Bank under the laws of the State of New York, enforceable against the Company and the ~~Seller~~ 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 Agreement under the Trust Indenture ~~Act~~Act of 1939, as amended, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Asset Representations Review Agreement~~, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the ~~Preliminary Prospectus~~ Registration Statement, in the form in which it became effective, and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the ~~headings~~ heading “Federal Income Tax Consequences” and the summary thereof under the heading “ ~~Prospectus~~ Summary of Terms – Federal Income Tax ~~Consequences”~~ Consequences “ (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the ~~Seller~~Sellers, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary ~~Prospectus, the Ratings Issuer Free Writing~~ Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement (excluding any exhibits filed therewith), at 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 Preliminary ~~Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus,~~ Prospectus as of the Time of ~~Sale,~~ Sale contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the ~~Prospectus, when taken together with the Ratings Issuer Free Writing~~ Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 ~~this paragraph~~ such opinion with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia st

Appears in 13 contracts

Sources: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Master Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or cause to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or cause to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Sidley Austin LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Sidley Austin LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Sidley Austin LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from Ernst & Young LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 12 contracts

Sources: Underwriting Agreement (COMM 2014-Ccre18 Mortgage Trust), Underwriting Agreement (COMM 2014-Ccre18 Mortgage Trust), Underwriting Agreement (COMM 2014-Ccre15 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Registered Certificates shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date ~~hereof~~ hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date and as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have ~~received,~~ been issued and not withdrawn and no proceedings for that purpose shall have been instituted or threatened; and the Final Prospectus shall have been filed or transmitted for filing with ~~respect~~ the Commission in accordance with Rule 424 under the ▇▇▇▇ ▇▇▇. (b) The Company shall have delivered to you a certificate of the Company, signed by the President or a ~~certificate,~~ vice president or an assistant vice president of the Company and dated the Closing Date, ~~of an authorized officer of the Company in which such officer,~~ to the ~~best~~ effect that the signer of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state~~ Final Prospectus and this Agreement and that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on at and as of the Closing Date with the same effect as if made on the Closing Date, (ii) the Company ~~has complied~~ has, in all material ~~respects~~ respects, complied with all the agreements and satisfied all the conditions on its part that are required by this Agreement to be performed or satisfied ~~hereunder~~ at or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, ~~and~~ threatened, (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to the attention of such ~~counsel’s attention to cause~~ officer that would lead such ~~counsel~~ officer to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing~~ Final Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (~~it being understood that such counsel~~ v) subsequent to the respective dates as of which information is given in the Final Prospectus, there has not been ~~requested~~ any material adverse change in the general affairs, capitalization, financial condition or results of operations of the Company. (c) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp, counsel for the Company and the Seller, a favorable opinion, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters. (d) The Representative shall have received from Deloitte & Touche, certified public accountants, a letter, dated the date hereof and ~~does not make any comment~~ satisfactory in ~~this paragraph with respect~~ form and substance to the ~~financial statements~~Representative and counsel for the Underwriters, ~~supporting schedules and other~~ to the effect that they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical ~~information contained~~ nature set forth in each respective Final Prospectus under the ~~Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing~~ captions “Summary of Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus). In rendering such opinion, counsel may Supplement—The Mortgage Loans,” “Risk Factors” (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~~ of information regarding the Mortgage Loans therein) “The Mortgage Pool” “Yield on the Certificates” and ~~as stated therein, on certificates of responsible officers~~ “Description of the ~~Seller and~~ Certificates” agrees with the ~~Company and public officials (references to~~ records of the ~~Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto)~~Seller. (e) The ~~Representatives~~ Certificates shall have ~~received an opinion or opinions of McGuireWoods LLP~~been given the ratings set forth in Schedule I hereto by the Rating Agency. (f) The Representative shall have received, ~~Virginia~~ from counsel to for the ~~Seller and the Company~~Trustee, a favorable opinion, dated the Closing Date, and in form and substance ~~reasonably~~ satisfactory to the ~~Representatives~~ Representative and ~~their~~ its counsel, to the effect that the Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Trustee and constitutes the legal, valid and binding agreement of the Trustee, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights in general and by general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law, and as to such other matters as may be agreed upon by the Trustee and the Representative. (g) The Representative shall have received from the Seller, in form and substance satisfactory to counsel for the Underwriters: (i) ~~With respect to~~ An officer’s certificate stating that on the ~~perfection~~ Closing Date the representations and warranties of the ~~Company’s interest in~~ Seller under the ~~Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables~~ Mortgage Loan Purchase Agreement will be true and ~~the Collateral Certificate~~ correct and ~~certain other matters relating to any applicable credit enhancement.~~no event has occurred that would constitute a default thereunder; and (ii) ~~With respect to certain Virginia tax consequences~~ An officer’s certificate relating to the ~~issuance~~ Mortgage Loan Purchase Agreement and the obligations of the ~~Notes~~Seller thereunder, as Seller or otherwise, together with copies of the certificate of incorporation and by-laws of the Seller and a certificate of good standing of the Seller under the laws of the State of New York; (h) The Representative shall have received from the Master Servicer, in form and substance satisfactory to counsel for the Underwriters: (i) An officer’s certificate stating that on the Closing Date the representations and warranties of the Master Servicer contained in the Pooling and Servicing Agreement will be true and correct and no event has occurred with respect to the Master Servicer that would constitute an Event of Default thereunder; and (ii) An officer’s certificate relating to the Pooling and Servicing Agreement and the obligations of the Master Servicer thereunder, as Master Servicer or otherwise, and attached thereto the Articles of Association of the Master Servicer, together with copies of the charter and by-laws of the Master Servicer and a certificate of good standing of the Master Servicer issued by the Office of the Comptroller of the Currency of the United States of America. (~~iii~~i) To The Representative shall have received from counsel to the Master Servicer, a favorable opinion, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters. (j) The Underwriters shall have received copies of any opinions of counsel to the Company, the Seller, each Underlying Seller and the Master Servicer supplied to the Rating Agency or the Trustee relating to certain matters with respect to the Certificates. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by the reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (k) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to the Representative and counsel for the Underwriters, and the Representative and counsel for the Underwriters shall have received such other information, certificates and documents as they may reasonably request. (l) All documents required under the Mortgage Loan Purchase Agreement have been provided to the appropriate parties. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, if the Company is in breach of any covenants or agreements contained herein or if any of the opinions and 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 counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing, or by telephone or telegraph confirmed in writing. (m) The Representative shall have received, from counsel for the Paying Agent, a favorable opinion, dated the Closing Date, and in form and substance satisfactory to the Representative and its counsel, to the effect that the ~~Company~~ Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Paying Agent and constitutes the legal, valid and binding agreement of the Paying Agent, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights in general and by general principles of equity, regardless of whether such enforcement is considered in a ~~limited liability company duly organized~~ proceeding in equity or at law, and ~~in existence under~~ as to such other matters as may be agreed upon by the ~~laws of Virginia~~ Paying Agent and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure MaterialsRepresentative. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 11 contracts

Sources: Underwriting Agreement (Citigroup Mortgage Loan Trust 2006-Ar6), Underwriting Agreement (Citigroup Mortgage Loan Trust 2006-Ar9), Underwriting Agreement (Citigroup Mortgage Loan Trust 2006-Ar7)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Sidley Austin LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Sidley Austin LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Sidley Austin LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from Ernst & Young LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 10 contracts

Sources: Underwriting Agreement (COMM 2015-Ccre22 Mortgage Trust), Underwriting Agreement (COMM 2015-Ccre22 Mortgage Trust), Underwriting Agreement (COMM 2014-Ubs4 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Offered Certificates of any Series shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company~~Company contained in this Agreement, as supplemented by the ~~Issuer and the Seller herein~~ related Terms Agreement, as of the ~~date hereof~~ respective dates thereof and the related Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer~~ Company of its obligations under this Agreement and ~~the Seller in all material respects of their obligations hereunder~~ such Terms Agreement and to the following additional conditions ~~precedent~~applicable to the related Certificate Offering: (a) The Representatives shall have received, with respect to the Company, a certificate, dated the Closing Date, of an authorized officer of the Company in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared and remains effective, no No stop order suspending the effectiveness of the related Registration Statement ~~has~~ shall have been issued and no proceedings for that purpose shall have been instituted or ~~are~~ threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) ~~The Representatives~~ ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, shall have ~~received, with respect~~ furnished to you an opinion addressed to the ~~Seller, a certificate~~Underwriters, dated the related Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) ~~Capital One Bank (USA), National Association is a national banking association under the laws of the United States,~~ this Agreement and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has related Terms Agreement have been duly executed and delivered by the ~~Seller.~~Company under the laws of the State of New York; (ivii) ~~Each of~~ the ~~Program Agreements to which the Company is a party has been duly authorized by all necessary limited liability company action on the part of the Company~~ related Pooling and Servicing Agreement 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New ~~York~~York and is a legal, valid and binding agreement of the Company enforceable against the Company ~~and the Seller~~ 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available).; (iii) ~~The Indenture has been qualified under~~ the ~~Trust Indenture Act. (iv) The Collateral Certificate~~Offered Certificates, when duly executed and ~~authenticated~~ countersigned by the Trustee in accordance with the ~~terms of the~~ related Pooling and Servicing Agreement, will be ~~duly and~~ validly issued and outstanding and ~~will be~~ entitled to the benefits of ~~the~~ such Pooling and Servicing Agreement.; (iv) the related Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the trust created thereunder is not required to be registered under the Investment Company Act of 1940, as amended; (v) ~~Each of this Agreement,~~ such counsel confirms that the applicable Terms Agreement, the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus related Registration Statement is effective under the ~~headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences)~~Act and, to the ~~extent they constitute matters~~ best of ~~law or legal conclusions~~ such counsel’s knowledge, no stop order with respect ~~thereto~~thereto has been issued, ~~have~~ and no proceeding for that purpose has been reviewed by such counsel and are correct in all material respects. (vii) The statements in the Preliminary Prospectus and the Prospectus under the headings “Certain Legal Aspects of the Receivables” and “Benefit Plan Investors,” to the extent they constitute matters of law instituted or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects. (viii) 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. (ix) When the Notes have been duly executed and delivered threatened by the ~~Issuer, authenticated by~~ Commission; such Registration Statement (except the ~~Indenture Trustee in accordance with the Indenture~~ financial statements and ~~delivered~~ schedules 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,~~ other financial and the Notes will constitute the legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus and the Prospectus and have considered the matters required to be stated statistical data included therein and the ~~matters stated~~ documents incorporated by reference therein, ~~although they are not independently verifying the accuracy, completeness or fairness of such statements (except~~ as ~~stated in paragraphs (vi) and (vii) above). Based upon and subject~~ to ~~the foregoing, nothing has come to such counsel’s attention to cause~~ which such counsel ~~to believe that the Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith~~need express no view), at the time it became effective, the related Prospectus (except the financial statements and schedules, the other financial and statistical data included therein and the documents incorporated by reference therein), as of the date of the Prospectus Supplement, conformed in all material respects to the requirements of the Act and the rules and regulations thereunder; and no information has come to the attention of such counsel that causes it to believe that (A) such Registration Statement (except the financial statements and schedules and the other financial and statistical data included or incorporated by reference therein and the documents incorporated by reference therein, as to which such counsel need express no view) at the time it became effective, contained ~~any~~ an untrue statement of a material fact or omitted to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or ~~that~~ (B) such Prospectus or any amendment or supplement thereto (except the ~~Preliminary Prospectus, when taken together with~~ financial statements and schedules and the ~~Ratings Issuer Free Writing Prospectus~~other financial and statistical data included or incorporated by reference therein), as of the ~~Time~~ date of ~~Sale~~the Prospectus Supplement, or at the related Closing Date, contained ~~any~~ or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~, or that the Prospectus, when taken together with the Ratings Issuer Free Writing~~ . (vi) Each Prospectus, as of the date thereof (with the exception of any information incorporated by reference therein and any numerical, financial, statistical and quantitative data included therein, as to which such counsel need express no view), appeared on its ~~date or~~ face to be appropriately responsive in all material respects to the requirements of the Act, and the rules and regulations thereunder applicable thereto as of the ~~date~~ relevant date; (vii) the statements set forth under the heading “Description of the Certificates” in the related Prospectus, insofar as such statements purport to summarize certain provisions of the related Pooling and Servicing Agreement and the related Offered Certificates, provide a fair summary of such ~~opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make~~ provisions; (viii) the statements ~~therein,~~ set forth in ~~light~~ the related Prospectus under the headings “Certain Legal Aspects of the ~~circumstances under which~~ Mortgage Loans”, “Material Federal Income Tax Consequences” (insofar as they ~~were made, not misleading (it being understood that such counsel has not been requested to and does not make any comment in this paragraph with respect~~ relate specifically to the ~~financial statements~~purchase, ~~supporting schedules~~ ownership and disposition of the related Offered Certificates) and “ERISA Considerations” (insofar as they relate specifically to the purchase, ownership and disposition of such Offered Certificates), to the extent that they constitute matters of law or legal conclusions, provide a fair summary of such law or conclusions; (ix) assuming compliance with all provisions of the related Pooling and Servicing Agreement, for federal income tax purposes, (A) if any election is made to treat the assets of the Trust Fund as a REMIC: the related Trust Fund (and any specified subgrouping therein) will qualify as a REMIC pursuant to Section 860D of the Internal Revenue Code of 1986, as amended (the “Code”), each Class of Certificates of the related Series, other ~~financial~~ than the related Residual Class or ~~statistical information contained~~ Classes, will constitute a class of “regular interests” in the ~~Registration Statement~~related REMIC within the meaning of the Code, ~~the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or,~~ and each Class of such Certificates specified in the ~~case~~ related Prospectus as a Class of Residual Certificates will constitute the “residual interest” in the related REMIC within the meaning of the ~~Preliminary Prospectus,~~ Code; and (B) if no such REMIC election is made: the ~~omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus). In rendering such opinion, counsel may~~ Trust Fund will be treated as a “grantor trust”; and (x) assuming that some or all of the Offered Certificates of the related Series shall be rated at the time of issuance in one of the two highest rating categories by a nationally recognized statistical rating organization, each Offered Certificate so rated will be at the time of issuance, a “mortgage related security” as such term is defined in Section 3(a)(41) of the Exchange Act. Such opinion may express its reliance as to factual matters ~~involving~~ on the ~~application~~ representations and warranties made by, and on certificates or other documents furnished by, officers of ~~laws~~ the parties to this Agreement, the related Terms Agreement or the related Pooling and Servicing Agreement. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Company. Such opinion may be qualified, insofar as it concerns the enforceability of the documents referred to therein, to the extent that such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights in general and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). Such opinion may be further qualified as expressing no opinion as to (x) the statements in the related Prospectus under the heading “Certain Legal Aspects of the Mortgage Loans” except insofar as such statements relate to the laws of ~~any jurisdiction other than~~ the State of New York and the laws of the United States, and (y) the statements in such Prospectus under the headings “ERISA Considerations” and “Material Federal Income Tax Consequences” except insofar as such statements relate to the laws of the United States. In addition, such opinion may be qualified as an opinion only on the laws of the States of New York and Texas and the federal laws of the United States of America. (c) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, ~~assume~~ counsel for the ~~conformity of such laws with~~ Company, shall have furnished to you an opinion addressed to the Underwriters, dated the related Closing Date, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of ~~New York~~ the State of Delaware, with corporate power to own its properties, to conduct its business as described in the related Prospectus and to enter into and perform its obligations under this Agreement, the related Terms Agreement, the related Pooling and Servicing Agreement and the Certificates of the related Series; (yii) the Company has full power and authority to sell the related Mortgage Loans as contemplated herein and in the related Pooling and Servicing Agreement; (iii) this Agreement, the related Terms Agreement and the related Pooling and Servicing Agreement have been duly authorized, executed and delivered by the Company under the laws of the State of Delaware; (iv) the issuance and sale of the Offered Certificates have been duly authorized by the Company; (v) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated herein or in the related Pooling and Servicing Agreement, except such as may be required under the blue sky laws of any jurisdiction and such other approvals as have been obtained; (vi) neither the issuance of the Certificates of the related Series nor delivery of the related Offered Certificates, nor the consummation of any other of the transactions contemplated in this Agreement, the related Terms Agreement or the related Pooling and Servicing Agreement, nor the fulfillment of the terms of the related Certificates, the related Pooling and Servicing Agreement, this Agreement or the related Terms Agreement will conflict with or violate any term or provision of the articles of incorporation or by-laws of the Company or any statute, order or regulation applicable to the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company and will not conflict with, result in a breach or violation or the acceleration of or constitute a default under the terms of any indenture or other agreement or instrument known to such counsel to which the Company is a party or by which it is bound; and (vii) there are no actions, proceedings or investigations pending or, to the best knowledge of such counsel, threatened before any court, administrative agency or other tribunal (A) asserting the invalidity of this Agreement, the related Terms Agreement, the related Pooling and Servicing Agreement or the related Certificates, (B) seeking to prevent the issuance of the Certificates of the related Series or the consummation by the Company of any of the transactions contemplated by this Agreement, such Terms Agreement or such Pooling and Servicing Agreement, or (C) which might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, this Agreement, such Terms Agreement, such Pooling and Servicing Agreement or the related Certificates. In rendering his or her opinion such counsel may rely as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the ~~Seller and~~ Company or public officials. In addition, such opinion may be qualified as an opinion only on the ~~Company and public officials (references to~~ general corporation laws of the ~~Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto)~~State of Delaware. (ed) ~~The Representatives~~ In-house counsel for First Horizon Home Loan Corporation (or its ultimate parent) shall have ~~received~~ furnished to you an opinion ~~or opinions of McGuireWoods LLP, Virginia counsel~~ addressed to the ~~Seller and the Company~~Underwriters, dated the related Closing Date, ~~in form and substance reasonably satisfactory~~ to the ~~Representatives and their counsel~~effect that: (i) ~~With respect to the perfection of the Company’s interest~~ First Horizon Home Loan Corporation has been duly incorporated and is validly existing as a corporation in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence good standing under the laws of ~~Virginia and~~ the ~~Company has~~State of Kansas, ~~in all material respects, the limited liability company~~ with corporate power to own its ~~assets and operate~~ properties, to conduct its business as described in the ~~Disclosure Materials,~~ related Prospectus and ~~had at all relevant times,~~ to enter into and ~~now has~~perform its obligations under this Agreement, the ~~limited liability company~~ related Terms Agreement, the related Pooling and Servicing Agreement and the Certificates of the related Series; (ii) First Horizon Home Loan Corporation has full power and authority to ~~acquire~~ sell and ~~own~~ master service the ~~Receivables~~ related Mortgage Loans as contemplated herein and ~~its interest in any Collateral Certificate transferred or proposed to be transferred to the Issuer as described~~ in the ~~Disclosure Materials.~~related Pooling and Servicing Agreement; (iii) this Agreement, the related Terms Agreement and the related Pooling and Servicing Agreement have been duly authorized, executed and delivered by First Horizon Home Loan Corporation under the law of the State of Kansas; (iv) To the ~~effect that~~ issuance and sale of the ~~Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party.~~Offered Certificates have been duly authorized by First Horizon Home Loan Corporation; (v) ~~To the effect that~~ no consent, ~~approval~~ approval, authorization or ~~authorization of,~~ order of any court or ~~filing with, any Virginia~~ governmental agency or ~~authority~~ body is required for the consummation by First Horizon Home Loan Corporation of the transactions contemplated herein or in the related Pooling and Servicing Agreement, except such as may be required under the blue sky laws of any jurisdiction and such other approvals as have been obtained; (vi) neither the issuance of the Certificates of the related Series nor delivery of the related Offered Certificates, nor the consummation of any other of the transactions contemplated in this Agreement, the related Terms Agreement or the related Pooling and Servicing Agreement, nor the fulfillment of the terms of the related Certificates, the related Pooling and Servicing Agreement, this Agreement or the related Terms Agreement will conflict with or violate any term or provision of the articles of incorporation or by-laws of First Horizon Home Loan Corporation or any ~~Virginia court~~ statute, order or regulation applicable to First Horizon Home Loan Corporation of any court, regulatory body, administrative agency or governmental body having jurisdiction over First Horizon Home Loan Corporation and will not conflict with, result in a breach or violation or the acceleration of or constitute a default under the terms of any indenture or other agreement or instrument known to such counsel to which First Horizon Home Loan Corporation is ~~required~~ a party or by which it is bound, other than such conflicts, breaches and violations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on First Horizon Home Loan Corporation and its subsidiaries, taken as a whole, or on the ~~part~~ issuance and sale of the ~~Seller under applicable Virginia~~ Certificates or the consummation of the transactions contemplated hereby; and (vii) there are no actions, proceedings or investigations pending or, to the best knowledge of such counsel, threatened before any court, administrative agency or other tribunal (A) asserting the invalidity of this Agreement, the related Terms Agreement, the related Pooling and Servicing Agreement or the related Certificates, (B) seeking to prevent the issuance of the Certificates of the related Series or the consummation by First Horizon Home Loan Corporation of any of the transactions contemplated by this Agreement, such Terms Agreement or such Pooling and Servicing Agreement, or (C) which might materially and adversely affect the performance by First Horizon Home Loan Corporation of its obligations under, or the validity or enforceability of, this Agreement, such Terms Agreement, such Pooling and Servicing Agreement or the related Certificates. In rendering his or her opinion such counsel may rely as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of First Horizon Home Loan Corporation or public officials. In addition, such opinion may be qualified as an opinion which is based solely upon a review of the general corporations law of the State of Kansas without regard to the interpretational case law thereof. (e) You shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the related Closing Date, with respect to the issuance and sale of the Certificates of the related Series, the related Registration Statement, the related Prospectus and such other related matters as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as the Underwriters may reasonably request for the purpose of enabling them to pass upon such matters. (f) The Company shall have furnished to

Appears in 10 contracts

Sources: Underwriting Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2006-Ar1), Underwriting Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2006-Fa3), Underwriting Agreement (First Horizon Asset Sec Mort Pass THR Certs Ser 2006-1)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the Company, the Issuer and the ~~Seller~~ Sellers herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company, the Issuer and the ~~Seller~~ Sellers made pursuant to the provisions thereof, to the performance by the Company, the Issuer and the ~~Seller~~ Sellers in all material respects of their obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to the Company, a certificate, dated the Closing Date, of an authorized officer of the Company in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared ~~and remains~~ effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to ~~the~~ each Seller, a certificate, dated the Closing Date, of an authorized officer of ~~the~~ 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 ~~the~~ such Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) ~~the~~ 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 Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of ~~the~~ such Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general ~~counsel, chief~~ counsel ~~for transactions,~~ or ~~senior~~ associate general counsel of Capital One Bank ~~(USA)~~and Capital One, ~~National Association,~~ F.S.B. or such other legal counsel that Capital One Bank ~~(USA)~~and Capital One, ~~National Association~~ F.S.B. may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank ~~(USA), National Association~~ has been duly incorporated and is a ~~national~~ banking ~~association~~ corporation under the laws of the Commonwealth of Virginia, and Capital One, F.S.B., is a federal savings bank chartered under the laws of the United States, and ~~the Bank~~ each Seller has, in all material respects, the corporate power to own its assets and operate its business as described in the ~~Disclosure Materials~~Preliminary Prospectus and the Prospectus, and ~~the Bank~~ each Seller had at all relevant times and now has, the corporate power to acquire, own and service the Receivables. (ii) ~~The~~ 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 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 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 Preliminary Prospectus and the Prospectus. (iii) Each Seller has the corporate power to execute and deliver ~~each~~ the applicable Receivables Purchase Agreement, the Pooling and Servicing Agreement (in the case of the ~~Program Agreements to which it is a party~~Bank), this Agreement and the applicable Terms Agreement, and to consummate the transactions set forth herein and therein. (~~iii~~iv) The Company has the limited liability company power 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 set forth herein and therein. (v) Each of this Agreement, the ~~Program Agreements to which~~ applicable Terms Agreement, the ~~Seller is a party~~ 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 ~~the~~ each Seller and has been duly executed and delivered by ~~the~~ each Seller. (ivvi) Each of this Agreement, the ~~Program Agreements to which~~ applicable Terms Agreement, the ~~Company is a party~~ 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. (vvii) No consent, approval, authorization or order of, or filing with, any ~~United States~~ Virginia governmental agency or authority or any ~~United States federal~~ Virginia court is required on the part of ~~the~~ each Seller under ~~United States federal~~ applicable Virginia banking or other Virginia law for the consummation by each Seller of the transactions set forth in this Agreement, the ~~Program Agreements to which it is a party~~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 ~~Agreement~~ Agreements or the Pooling and Servicing Agreement. (viviii) No consent, approval, authorization or order of, or filing with, any ~~United States~~ Virginia governmental agency or authority or any ~~United States federal~~ Virginia court is required on the part of the Company under ~~United States federal~~ applicable Virginia limited liability company or Virginia law for the consummation by the Company of the transactions set forth in this Agreement, the ~~Program Agreements to which it is a party~~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. (~~vii~~ix) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of each Seller under United States federal law for the consummation of the transactions set forth 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 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 authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth 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 and delivery by each of the ~~Seller~~ Sellers and the ~~Company, as applicable,~~ Company of the ~~Program~~ Agreements to which it is a party or the performance by each of the Sellers and the Company of its obligations under the Agreements to which it is a party, ~~or the performance by each of the Seller and the Company of its obligations thereunder,~~ nor the transfer by the ~~Seller~~ Bank of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the ~~Bank~~ Bank, Capital One, F.S.B. or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to Virginia banking, Virginia limited liability company or other ▇▇▇▇▇▇▇▇ ▇▇▇▇ or United States federal law, of any Virginia or United States court, regulatory body, or administrative or governmental agency having jurisdiction over ~~the~~ each Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which each of the ~~Seller~~ Sellers or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (~~viii~~xii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of this Agreement, the ~~Program Agreements~~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 or the consummation of any of the transactions set forth by this Agreement, the ~~Program Agreements~~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 ~~Program Agreements~~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 Preliminary Prospectus or the Prospectus under the headings ~~“Prospectus~~ “ Summary of Terms – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion ~~or opinions~~ of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ~~and~~ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Company and the ~~Seller~~Sellers, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing ~~Agreement, the Asset Representations Review Agreement, the Transfer~~ Agreement and the applicable Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the applicable Seller under the laws of the State of New York, enforceable against the Company and the applicable Seller 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 Agreement under the Trust Indenture ~~Act~~Act of 1939, as amended, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Asset Representations Review Agreement~~, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the ~~Preliminary Prospectus~~ Registration Statement, in the form in which it became effective, and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the ~~headings~~ heading “Federal Income Tax Consequences” and the summary thereof under the heading “ ~~Prospectus~~ Summary of Terms – Federal Income Tax ~~Consequences”~~ Consequences “ (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the ~~Seller~~Sellers, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary ~~Prospectus, the Ratings Issuer Free Writing~~ Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement (excluding any exhibits filed therewith), at 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 Preliminary ~~Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus,~~ Prospectus as of the Time of ~~Sale,~~ Sale contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the ~~Prospectus, when taken together with the Ratings Issuer Free Writing~~ Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 ~~this paragraph~~ such opinion with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia r

Appears in 10 contracts

Sources: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Funding, LLC)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the Notes ~~will~~ hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller herein as of the date hereof and the Closing Date~~Company contained in this Agreement, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional conditions ~~precedent~~applicable to the Note Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted, ~~with respect~~ or to the knowledge of the Company, threatened by the Commission. (b) The Company shall have furnished to the Representatives a ~~certificate~~certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of ~~an authorized officer of~~ such certificate has carefully examined the Transaction Documents to which the Company ~~in which such officer~~is a party, and that, to the best of ~~his or her~~ such person’s knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of the Company in this Agreement and the Transaction Documents to which the Company is a party are true and correct in all material ~~respects on~~ respects, and ~~as of the Closing Date, (ii)~~ the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an on the Closing Date a signed opinion of ~~the general counsel~~M▇▇▇▇ ▇▇▇▇▇ LLP, ~~deputy general counsel, chief~~ special New York counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the ~~Representatives), dated the Closing Date~~Company, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~Capital One Bank (USA), National Association~~ the Company is a ~~national banking association~~ limited liability company validly existing and in good standing under the laws of the ~~United States~~State of Delaware, and ~~the Bank has, in all material respects, the~~ has full power and authority to ~~own~~ enter into and perform its ~~assets and operate its business as described in the Disclosure Materials,~~ obligations under this Agreement and the ~~Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements~~ Transaction Documents to which it is a ~~party,~~ party and to consummate the transactions ~~set forth herein and therein.~~contemplated thereby; (~~iii~~ii) ~~Each~~ the execution, delivery and performance by the Company of this Agreement and the ~~Program Agreements~~ Transaction Documents to which the ~~Seller~~ Company is a party ~~has~~ have been duly authorized by all necessary action on the part of the ~~Seller~~ Company; (iii) each of the Transaction Documents to which the Company, the Bank or the Issuer (each, a “Specified Entity” and ~~has been duly executed~~ collectively, the “Specified Entities”) is a party constitutes a legal, valid and ~~delivered by~~ binding obligation of each such Specified Entity that is a party thereto, enforceable against each such Specified Entity in accordance with its terms; provided, that no such opinion need be expressed with respect to the ~~Seller.~~Trust Agreement; (iv) ~~Each~~ the execution and delivery by each Specified Entity of this Agreement and the Transaction Documents to which it is a party, and the consummation by each Specified Entity of the ~~Program Agreements~~ transactions contemplated thereby, will not violate any applicable statutory law or governmental rule or regulation; (v) the execution and delivery by each Specified Entity of this Agreement and the Transaction Documents to which ~~the Company~~ it is a party ~~has~~ do not, or did not, as applicable, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of the opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been ~~duly authorized~~ made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (vi) the execution and delivery by ~~all necessary~~ the Company of this Agreement and the Transaction Documents to which it is a party do not, or did not, as applicable, and the consummation by the Company of the transactions contemplated thereby to occur on the date of the opinion will not violate or contravene or constitute a default under any term or provision of the certificate of formation or the limited liability company ~~action on the part~~ agreement of the ~~Company~~ Company; (vii) each of the Notes is in due and ~~has been duly executed and delivered by the Company~~ proper form, and when ~~the Collateral Certificate has been~~ executed, authenticated and delivered as specified in the Indenture, and delivered against payment of the consideration specified herein, each of the Notes will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with ~~the terms of the Pooling and Servicing Agreement~~its terms, ~~the Collateral Certificate will be duly and validly issued and outstanding~~ and will be entitled to the benefits of the Pooling and Servicing Agreement. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws.; (viii) ~~Except~~ the Indenture has been duly qualified under the Trust Indenture Act of 1939, as ~~otherwise disclosed in~~ amended (the ~~Preliminary Prospectus or~~ “TIA”), and complies as to form with the TIA and the rules and regulations of the Commission thereunder; (ix) the Registration Statement, as of its Effective Date and the Prospectus, as of its date, complied as to form in all material respects with the ~~knowledge~~ requirements of the Act and the rules and regulations under the Act, except that (i) such ~~counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before~~ counsel need not express any ~~court, administrative agency or other tribunal~~ opinion as to (A) ~~asserting~~ the ~~invalidity of the Program Agreements~~financial and statistical data included therein or excluded therefrom, (B) ~~seeking to prevent~~ any other documents or information incorporated by reference in the ~~issuance of the Collateral Certificate~~ Registration Statement or the ~~Notes or the consummation of any of the transactions set forth by the Program Agreements~~Prospectus, ~~which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or~~ (C) ~~seeking adversely~~ any exhibits to ~~affect~~ the ~~United States federal income tax attributes~~ Registration Statement and (D) compliance by the Company and each issuing entity previously established, directly or indirectly, by the Company or any affiliate of the ~~Notes~~ Company with the registrant requirements set forth in General Instruction I.A.2 of Form SF-3 as ~~described~~ of any required date and (ii) except as and to the extent set forth in paragraphs (xi) and (xii) below, such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the ~~Preliminary~~ Registration Statement or the Prospectus; (x) the Registration Statement became effective under the Act not more than three (3) years prior to the Closing Date, and the Prospectus or has been filed with the Commission pursuant to Rule 424(b) thereunder in the manner and within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement and the Prospectus and no proceedings for that purpose have been instituted; (xi) the statements in the Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~The Trust—Perfection and Priority of Security Interests,” “—Conservatorship and Receivership of Synchrony Bank,” “Certain Considerations for ERISA and Other U.S. Employee Benefit Plans” and “~~Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇~~ Structural Summary—Certain Considerations for ERISA and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax ConsequencesOther U.S. Employee Benefit Plans,” ~~and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences),~~ to the extent they constitute matters of federal law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects.; (~~vii~~xii) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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,~~ Transaction Documents and the Notes ~~will constitute~~ conform in all material respects to the ~~legal, valid and binding obligations of~~ descriptions thereof contained in the Prospectus; and (xiii) the Issuer enforceable against the Issuer in accordance with their terms. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) ~~reclaim~~is not now, ~~recover or recharacterize as property~~ and immediately following the issuance of the ~~Bank or the receivership the assets that have been transferred by the Bank to the Company~~ Notes pursuant to the ~~Receivables Purchase Agreement~~ Indenture will not be, required to be registered as an “investment company” under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and as of the Closing Date, the Issuer satisfies the requirements to rely on the exemption from the definition of “investment company” provided by Rule 3a-7 of the Investment Company Act, although there may be additional exclusions or exemptions available to the Issuer and (B) ~~avoid~~ is not now, and immediately following the ~~Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives~~ issuance of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject Notes pursuant to the ~~foregoing~~Indenture will not be, nothing has come to such counsel’s attention to cause such counsel to believe that the Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, “covered fund” as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only defined in the final ~~Prospectus). In rendering such opinion~~regulations issued on December 10, ~~counsel may~~ 2013, implementing the “V▇▇▇▇▇▇ Rule” (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 Section 619 of the ~~Seller~~ D▇▇▇-F▇▇▇▇ ▇▇▇▇ Street Reform and ~~the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto~~Consumer Protection Act). (ed) The Representatives shall have received ~~an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated~~ on the Closing ~~Date~~Date a signed opinion of P▇▇▇ ▇▇▇▇▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~With respect to~~ the ~~perfection~~ Bank is duly organized and validly existing as a federal savings association in good standing under the laws of the ~~Company’s interest in the Receivables, the perfection~~ United States of ~~the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~America; (ii) ~~With respect~~ the Bank is duly qualified to ~~certain Virginia tax consequences relating~~ do business and is in good standing as a foreign corporation in each jurisdiction where the conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the ~~issuance of~~ Servicing Agreement, the ~~Notes.~~Receivables Sale Agreement, the Administration Agreement, the Risk Retention Agreement, this Agreement and the Asset Representations Review Agreement; (iii) To the ~~effect that the Company is a limited liability company duly organized~~ Bank has all requisite banking power and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power authority to execute, deliver and perform its obligations under the Servicing Agreement, the Receivables Sale Agreement, the Asset Representations Review Agreement, the Risk Retention Agreement, the Administration Agreement and this Agreement and to consummate the transactions provided for therein; (iv) the execution, delivery and performance by the Bank of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite action on the part of the Bank; (v) each of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (vi) the execution, delivery and performance by the Bank of each of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement and the consummation of the transactions contemplated thereby do not and will not conflict with, result in a breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under: (a) the charter of the Bank, (b) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument or agreement to which the Bank is a party or by which the Bank is bound or (c) to such counsel’s knowledge, and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over the Bank; (vii) the execution, delivery and performance by the Bank of each ~~Program~~ of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement and the consummation of the transactions contemplated thereby do not and will not, to ~~which it is a party.~~the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement; (vviii) ~~To the effect that~~ no authorization, approval, consent, ~~approval~~ order, registration, qualification or ~~authorization of,~~ license of or filing with, any ~~Virginia~~ government, governmental ~~agency~~ instrumentality, agency, body or ~~authority~~ court, domestic or ~~any Virginia court~~ foreign, or third party is required for the performance by the Bank of all of its obligations under the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement, or the consummation by the Bank of the transactions contemplated by the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement; and (ix) there is no action, suit or proceeding before or by any government, governmental instrumentality, agency, body or court, domestic or foreign, now pending or, to the best of such counsel’s knowledge, threatened, against or affecting the Bank (a) asserting the invalidity of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement or the Administration Agreement or (b) that might materially and adversely affect the performance by the Bank of its obligations under, or the validity or enforceability of, the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement or the Administration Agreement. (e) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & F▇▇▇▇▇, P.A., counsel for the Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Trustee is validly existing as a national banking association under the federal laws of the United States of America and has the corporate power and authority to execute, deliver and perform its obligations under the Trust Agreement and to consummate the transactions contemplated thereby; (ii) the Trust Agreement has been duly authorized, executed and delivered by the Trustee; (iii) neither the execution, delivery and performance by the Trustee of the Trust Agreement, nor the consummation of any of the transactions by the Trustee 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 under the laws of the ~~Seller~~ State of Delaware or the federal laws of the United States of America governing the trust powers of the Trustee; and (iv) neither the execution, delivery and performance by the Trustee of the Trust Agreement, nor the consummation of any of the transactions by the Trustee contemplated thereby, is in violation of the articles of association or bylaws of the Trustee or of the laws of the State of Delaware or of the federal laws of the United States of America governing the trust powers of the Trustee. (f) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel for the Delaware Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Delaware Trustee is validly existing as a national banking association under ~~applicable Virginia~~ the federal laws of the United States of America and has the corporate power and authority to execute, deliver and perform its obligations under the Trust Agreement and to consummate the transactions contemplated thereby; (ii) the Trust Agreement has been duly authorized, executed and delivered by the Delaware Trustee; (iii) neither the execution, delivery and performance by the Delaware Trustee of the Trust Agreement, nor the consummation of any of the transactions by the Delaware Trustee 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 under the laws of the State of Delaware or the federal laws of the United States of America governing the trust powers of the Delaware Trustee; and (iv) neither the execution, delivery and performance by the Delaware Trustee of the Trust Agreement, nor the consummation of any of the transactions by the Delaware Trustee contemplated thereby, is in violation of the articles of association or bylaws of the Delaware Trustee or of the laws of the State of Delaware or of the federal laws of the

Appears in 9 contracts

Sources: Underwriting Agreement (Synchrony Card Issuance Trust), Underwriting Agreement (Synchrony Card Issuance Trust), Underwriting Agreement (Synchrony Card Issuance Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or cause to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or cause to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from KPMG LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 7 contracts

Sources: Underwriting Agreement (COMM 2014-Ubs5 Mortgage Trust), Underwriting Agreement (COMM 2014-Ccre19 Mortgage Trust), Underwriting Agreement (COMM 2014-Ubs3 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or cause to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or cause to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from Ernst & Young LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 7 contracts

Sources: Underwriting Agreement (COMM 2014-Lc15 Mortgage Trust), Underwriting Agreement (COMM 2013-Lc13 Mortgage Trust), Underwriting Agreement (COMM 2012-Ccre4 Mortgage Trust)

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~~ Seller and the ~~Seller~~ Bank herein as of the date hereof and the Closing Date, to the accuracy of the representations and warranties of the Issuer contained in each Transaction Document to which it is a party as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer~~ Seller and the ~~Seller~~ Bank made pursuant to the provisions thereof, to the performance by the ~~Company, the Issuer~~ Seller and the ~~Seller~~ Bank in all material respects of their obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to the Company, a certificate, dated the Closing Date, of an authorized officer of the Company in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Bank, a certificate, dated the Closing Date, of an authorized officer of the Bank 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 Bank in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Bank has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s ~~credit card~~ auto loan business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of ~~the general counsel~~▇▇▇▇▇ ▇▇▇▇▇ LLP, ~~deputy general counsel, chief~~ special counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the ~~Representatives)~~Seller and the Bank, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, with respect to certain corporate matters relating to the ~~effect that: (i) Capital One~~ Bank ~~(USA), National Association is a national banking association under the laws of the United States,~~ and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ ~~and ▇~~▇▇▇▇▇ LLP, special counsel for the ~~Company~~ Issuer, the Seller and the ~~Seller~~Bank, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, with respect to: certain corporate matters, perfection matters, matters related to the ~~effect that: (i) Each~~ creation of ~~the Pooling~~ a security interest, securities law matters, 1940 Act matters, tax matters, enforceability matters and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller in accordance with its terms. (ii) The true 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreementnonconsolidation matters. Such counsel shall also ~~state that they have participated in conferences with representatives~~ provide a “negative assurance” letter, dated as of the ~~Seller~~Closing Date, ~~the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning~~ covering the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus and the Prospectus in form 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 paragraphs (vi) and (vii) above). Based upon and subject substance reasonably satisfactory to the ~~foregoing, nothing has come to such~~ Representatives and their counsel’s attention to cause such counsel to believe that the Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received ~~an opinion or opinions of McGuireWoods~~ from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ~~Virginia~~ counsel to the ~~Seller~~ Underwriters, a “negative assurance” letter, dated as of the Closing Date, covering the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus and the ~~Company~~Prospectus in form and substance reasonably satisfactory to the Representatives; and the Bank and the Seller shall have furnished to such counsel such documents as they reasonably request in connection therewith. (f) On or before at the Closing Date, (i) a nationally recognized independent accounting firm reasonably acceptable to the Representatives shall have furnished to the Representatives a letter or letters, dated as of the date of the Preliminary Prospectus and as of the date of the Prospectus, in form and substance reasonably satisfactory to the Representatives and their counsel, confirming that they are certified independent public accountants and stating in effect that they have performed certain specified procedures with respect to the Issued Notes and the Receivables and (ii) the Accounting Firm shall have furnished to the Representatives the Accountant’s Due Diligence Report. (g) The Representatives shall have received evidence satisfactory to them that, on or before the Closing Date, UCC-1 financing statements have been filed (or have been sent for filing on the Closing Date or the next Business Day) with the appropriate UCC filing offices, reflecting the transfer of Receivables and other related property from the Bank to the Seller, the transfer of Receivables and other related property from the Seller to the Issuer and the pledge of the Receivables and other related property by the Issuer in favor of the Indenture Trustee. (h) The Representatives shall have received an opinion of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, counsel to the Indenture Trustee, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel:. (i) ~~With~~ The Representatives shall have received evidence satisfactory to them that on or before the Closing Date, all applicable UCC termination statements relating to liens of creditors of the Seller, the Issuer or the Bank or any other person on the Receivables have been filed (or have been sent for filing on the Closing Date or the next Business Day) with the appropriate filing offices, and the Representatives shall have received on or before the Closing Date contractual releases or releases terminating liens of creditors of the Seller, the Issuer, the Bank or any other person on the Receivables. (j) The Representatives shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special Delaware counsel to the Seller, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, with respect to (i) certain matters under Delaware law with respect to the ~~perfection~~ Seller and the authority of the ~~Company’s interest in~~ Seller to file a voluntary bankruptcy petition and (ii) certain corporate matters with respect to the ~~Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement~~Seller. (iik) ~~With respect to certain Virginia tax consequences relating~~ The Representatives shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the ~~issuance of~~ Owner Trustee and the ~~Notes~~Issuer, subject to customary qualifications, assumptions, limitations and exceptions dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel. (~~iii~~l) To The Ratings Issuer Free Writing Prospectus shall have been filed with the ~~effect~~ Commission, and the Representatives shall have received evidence of ratings letters that are reasonably satisfactory to the ~~Company is a limited liability company duly organized~~ Representatives from each Hired NRSRO and that assign ratings to the Notes at least equal to the ratings specified in ~~existence~~ the Ratings Issuer Free Writing Prospectus. (m) The Representatives shall have received such information, certificates and documents as the Representatives and their counsel may reasonably request. (n) All actions required to be taken and all filings required to be made by the Seller or the Issuer under the ~~laws~~ Act before the Closing Date for the Notes shall have been duly taken or made; and before the Closing Date, no stop order suspending the effectiveness of ~~Virginia~~ the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the ~~Company has~~knowledge of the Seller or the Issuer, threatened by the Commission. (o) The Representatives shall have received an opinion of in-house counsel to the Asset Representations Reviewer, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel. (p) The Issuer shall have executed and delivered to DTC a standard “Letter of Representations” sufficient to cause DTC to qualify each class of Notes for inclusion in DTC’s book-entry registration and transfer system, and each class of Notes shall have been approved by DTC for inclusion on its book-entry registration and transfer system. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material ~~respects~~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 Representatives and their counsel, this Agreement and all their obligations hereunder may be canceled at, or at any time before, the ~~limited liability company power~~ Closing Date by the Representatives. Notice of such cancellation shall be given to ~~own its assets and operate its business as described in~~ the ~~Disclosure Materials, and had at all relevant times, and now has~~Issuer, the ~~limited liability company power to acquire~~ Bank and own the Receivables and its interest in any Collateral Certificate transferred or proposed to be transferred to the Issuer as described in the Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller ~~under applicable Virginia~~ in writing or by telephone or telecopy confirmed in writing.

Appears in 6 contracts

Sources: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2025-1), Underwriting Agreement (Capital One Prime Auto Receivables Trust 2024-1), Underwriting Agreement (Capital One Prime Auto Receivables Trust 2023-2)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the Company, the Issuer and the Seller herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company, the Issuer and the Seller made pursuant to the provisions thereof, to the performance by the Company, the Issuer and the Seller in all material respects of their obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to the Company, a certificate, dated the Closing Date, of an authorized officer of the Company in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared ~~and remains~~ effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general ~~counsel, chief~~ counsel ~~for transactions,~~ or ~~senior~~ associate general counsel of Capital One Bank ~~(USA), National Association,~~ or such other legal counsel that Capital One Bank ~~(USA), National Association~~ may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank ~~(USA), National Association~~ has been duly incorporated and is a ~~national~~ banking ~~association~~ corporation under the laws of the ~~United States~~Commonwealth of Virginia, and the Bank has, in all material respects, the corporate power to own its assets and operate its business as described in the ~~Disclosure Materials~~Preliminary Prospectus and the Prospectus, and the Bank had at all relevant times and now has, the corporate power 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 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 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 Preliminary Prospectus and the Prospectus. (iii) The Seller has the corporate power to execute and deliver ~~each of~~ the ~~Program Agreements to which it is a party~~Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and to consummate the transactions set forth herein and therein. (~~iii~~iv) The Company has the limited liability company power to execute and deliver the Receivables Purchase Agreement, 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 set forth herein and therein. (v) Each of this Agreement, the ~~Program Agreements to which~~ applicable Terms Agreement, the ~~Seller is a party~~ Pooling and Servicing Agreement and the Receivables Purchase Agreement has been duly authorized by all necessary corporate action on the part of the Seller and has been duly executed and delivered by the Seller. (ivvi) Each of this Agreement, the ~~Program Agreements to which~~ applicable Terms Agreement, the ~~Company is a party~~ Pooling and Servicing Agreement, the Receivables Purchase Agreement, 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. (vvii) No consent, approval, authorization or order of, or filing with, any ~~United States~~ Virginia governmental agency or authority or any ~~United States federal~~ Virginia court is required on the part of the Seller under ~~United States federal~~ applicable Virginia banking or other Virginia law for the consummation by the Seller of the transactions set forth in this Agreement, the ~~Program Agreements to which it is a party~~applicable Terms Agreement, the Receivables Purchase Agreement or the Pooling and Servicing Agreement, 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 Agreement or the Pooling and Servicing Agreement. (viviii) No consent, approval, authorization or order of, or filing with, any ~~United States~~ Virginia governmental agency or authority or any ~~United States federal~~ Virginia court is required on the part of the Company under ~~United States federal~~ applicable Virginia limited liability company or Virginia law for the consummation by the Company of the transactions set forth in this Agreement, the ~~Program Agreements to which it is a party~~applicable Terms Agreement, the Receivables Purchase Agreement, 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. (~~vii~~ix) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement or the Pooling and Servicing Agreement, 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 Agreement or the Pooling and Servicing Agreement. (x) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement, 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 and delivery by each of the Seller and the ~~Company, as applicable,~~ Company of the ~~Program~~ Agreements to which it is a ~~party,~~ party or the performance by each of the Seller and the Company of its obligations ~~thereunder~~under the Agreements to which it is a party, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to Virginia banking, Virginia limited liability company or other ▇▇▇▇▇▇▇▇ ▇▇▇▇ or United States federal law, of any Virginia or United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (~~viii~~xii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of this Agreement, the ~~Program Agreements~~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 or the consummation of any of the transactions set forth by this Agreement, the ~~Program Agreements~~applicable Terms Agreement, the 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 ~~Program Agreements~~applicable Terms Agreement, the 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 Preliminary Prospectus or the Prospectus under the headings ~~“Prospectus~~ “ Summary of Terms – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion ~~or opinions~~ of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ~~and~~ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing ~~Agreement, the Asset Representations Review Agreement, the Transfer~~ Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture ~~Act~~Act of 1939, as amended, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the ~~Asset Representations Review Agreement, the~~ Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the ~~Preliminary Prospectus~~ Registration Statement, in the form in which it became effective, and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the ~~headings~~ heading “Federal Income Tax Consequences” and the summary thereof under the heading “ ~~Prospectus~~ Summary of Terms – Federal Income Tax ~~Consequences”~~ Consequences “ (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary ~~Prospectus, the Ratings Issuer Free Writing~~ Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement (excluding any exhibits filed therewith), at 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 Preliminary ~~Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus,~~ Prospectus as of the Time of ~~Sale,~~ Sale contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the ~~Prospectus, when taken together with the Ratings Issuer Free Writing~~ Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 ~~this paragraph~~ such opinion with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary ~~Prospectus, when taken together with the Ratings Issuer Free Writing~~ Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus). In rendering such ~~opinion,~~ 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 6 contracts

Sources: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Funding, LLC)

Appears in 5 contracts

Sources: Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust)

Appears in 5 contracts

Sources: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Funding, LLC)

Conditions to the Obligations of the Underwriters. The several obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Offered Securities of any Series shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company~~Company contained in this Agreement, ~~the Issuer and the Seller herein~~ as of the date ~~hereof~~ of the applicable Terms Agreement and the related Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer~~ Company of its obligations under this Agreement and the ~~Seller in all material respects of their obligations hereunder~~ applicable Transaction Documents and to the following additional conditions ~~precedent~~applicable to the related Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received,~~ been issued and no proceedings for that purpose shall have been instituted or threatened and the related Prospectus shall have been filed or mailed for filing with ~~respect~~ the Commission not later than required pursuant to the ~~Company,~~ rules and regulations of the Commission. (b) The Company shall have furnished to the Underwriters a certificate, dated the related Closing Date, of the Company, signed by an authorized officer of the ~~Company in which such officer~~Company, to the ~~best~~ effect that the signer of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the related Registration Statement, ~~shall state that~~ the related Prospectus and this Agreement and that: (i) ~~the~~ The representations and warranties of the Company ~~in this Agreement~~ herein are true and correct in all material respects on and as of such Closing Date with the same effect as if made on such Closing Date, ~~(ii)~~ and the Company has complied ~~in all material respects~~ with all agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder~~ at or ~~before the~~ prior to such Closing Date, ; (~~iii~~ii) ~~the Registration Statement has been declared and remains effective, no~~ No stop order suspending the effectiveness of the related Registration Statement has been ~~issued~~ issued, and no proceedings for that purpose have been instituted or and are pending or, to his knowledge, have been threatened ~~by the Commission, and~~ as of such Closing Date; and (iviii) ~~since the Time of Sale, there~~ Nothing has ~~been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references~~ come to the ~~Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received~~attention of such person that would lead him to believe that the related Free Writing Prospectus, ~~with respect to the Seller, a certificate, dated the Closing Date,~~ as of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on its date and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time date of each Contract of Sale, ~~there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary~~ and Prospectus (~~references to the Preliminary Prospectus in this clause include~~ other than any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, Current Report incorporated by reference therein and the ~~Bank has,~~ information included in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under “Description of the ~~headings “Prospectus Summary – Federal Income Tax Consequences~~Certificates—The Policy” and “~~Federal Income Tax Consequences.~~The Certificate Insurer” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained contains any untrue statement of a material fact or ~~omitted~~ omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) The Seller shall have furnished to the Underwriters a certificate, ~~or that~~ dated the ~~Prospectus~~related Closing Date, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as~~ of the ~~date~~ Seller, signed by an authorized officer of the Seller, to the effect that (i) the signer of such ~~opinion, contained or~~ certificate has carefully examined the related Prospectus and nothing has come to the attention of such person that would lead him to believe that such Prospectus contains any untrue statement of a material fact ~~or omitted~~ with respect to the Seller or omits to state any material fact with respect to the Seller or the Trust Assets 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) ~~With respect~~ the Seller has complied with all agreements and satisfied all the conditions on its part to ~~certain Virginia tax consequences relating~~ be performed or satisfied at or prior to ~~the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence~~ such Closing Date under ~~the laws of Virginia~~ this Agreement and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement Transaction Documents to which it is a party. (vd) The Company shall have furnished to you an opinion, dated the related Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp, special counsel to the Company, substantially to the effect that: (i) The related Registration Statement and any amendments thereto have become effective under the Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of such Registration Statement has been issued and not withdrawn, no proceedings for that purpose have been instituted or threatened and not terminated; and such Registration Statement, the related Prospectus, the related Free Writing Prospectus and each amendment or supplement thereto, as of their respective effective or issue dates (other than the financial and statistical information contained therein and the information included in the Free Writing Prospectus and Prospectus under “Description of the Certificates—The Policy” and “The Certificate Insurer” as to which such counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder and, if the applicable Series of Offered Securities includes Notes, with the requirements of the TIA and the rules and regulations thereunder; (ii) To the best knowledge of such counsel, there are no material contracts, indentures or other documents of a character required to be described or referred to in the related Registration Statement, the related Free Writing Prospectus or the related Prospectus or to be filed as exhibits to such Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto; (iii) Assuming that this Agreement and each Transaction Document to which the Company and/or the Seller is a party have each been duly authorized, executed and delivered by the parties thereto, each constitutes a valid, legal and binding agreement of the Company and the Seller, as applicable, enforceable against the Company or the Seller in accordance with its terms, subject, as to enforceability to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and to general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law; and subject to limitations of public policy under applicable securities laws as to rights of indemnity and contribution thereunder; (iv) Assuming that the Offered Securities of the applicable Series have been duly and validly authorized, executed and authenticated in the manner contemplated in the relevant Transaction Documents, when delivered and paid for by the Underwriters as provided in this Agreement, such Offered Securities will be validly issued and outstanding and entitled to the benefits of the related Transaction Documents and, if such Offered Securities include Notes, such Notes will constitute the valid, legal and binding obligation of the Trust, enforceable against the Trust in accordance with their terms subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and to general principals of equity regardless of whether enforcement is sought in a proceeding in equity or at law; (v) The Offered Securities of the related Series and the related Transaction Documents conform in all material respects to the descriptions thereof contained in the related Free Writing Prospectus and the related Prospectus; (vi) The statements in the related Free Writing Prospectus Supplement and Prospectus Supplement, as the case may be, under the headings “Federal Income Tax Consequences,” “ERISA Considerations” and “Legal Investment,” to the extent that they constitute matters of New York or federal law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects; (vii) The Pooling and Servicing Agreement is not required to be duly qualified under the TIA, and, the Trust is not required to be registered under the Investment Company Act of 1940, as amended; (viii) If one or more “real estate mortgage investment conduit” (“REMIC”) elections are indicated in the related Free Writing Prospectus Supplement and Prospectus Supplement, the Trust as described in such Free Writing Prospectus Supplement and such Prospectus Supplement will qualify as a REMIC within the meaning of Section 860D of the Internal Revenue Code of 1986, as amended (the “Code”) and the indicated Classes of such Securities will be considered “regular interests” in the REMIC, assuming: (i) an election is made to treat the Trust as a REMIC, (ii) compliance with the applicable Transaction Documents and (iii) compliance with changes in the law, including any amendments to the Code or applicable Treasury regulations thereunder; and (ix) If the related Free Writing Prospectus Supplement and Prospectus Supplement indicate that one or more Classes of Offered Securities are to be treated as debt of the Trust for federal income tax purposes, such Classes will be treated as debt for federal income tax purposes and the Trust will not be considered to be a publicly traded partnership or a taxable mortgage pool. Such counsel shall also state that nothing has come to its attention that would lead such counsel to believe that the related Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the related Prospectus, as of the date of the related Prospectus Supplement, and on the related Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to (i) financial and statistical information contained therein or (ii) any description in such Prospectus of any Certificate Insurer with respect to the related Offered Securities. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement and the applicable Transaction Documents. Such opinion may be qualified as an opinion only on the laws of the State of New York and the federal law of the United States. To the extent that such firm relies upon the opinion of other counsel in rendering any portion of its opinion, the opinion of such other counsel shall be attached to and delivered with the opinion of such firm that is delivered to you. (e) The Company shall have furnished to the Underwriters an opinion, dated the related Closing Date, of counsel to the Company (who may be an employee of the Company or of an affiliate of the Company), substantially to the effect ~~that no~~ that: (i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly qualified to do business in, and is in good standing as a foreign corporation under the laws of, the State of California; (ii) The Offered Securities of the applicable Series have been duly authorized and executed and, assuming authentication and delivery in the manner contemplated in the relevant Transaction Documents, are validly issued and outstanding, and upon delivery by the Company of the Offered Securities to be purchased by the Underwriters and payment by the Underwriters of the purchase price therefor in the manner contemplated by this Agreement, the Underwriters will acquire such Offered Securities free and clear of any lien, pledge, encumbrance or other security interest other than one created or granted by any Underwriter; (iii) Each Transaction Document to which the Company is a party has been duly authorized, executed and delivered by the Company; (iv) This Agreement has been duly authorized, executed and delivered by the Company; (v) No consent, ~~approval~~ approval, authorization or ~~authorization~~ order of any California or federal governmental agency or body or any California or federal court is required for the consummation by the Company of the transactions contemplated by the terms of this Agreement or the Transaction Documents to which the Company is a party except such as may be required under the “blue sky” or state securities laws of any jurisdiction in connection with the offering, sale or acquisition of the related Offered Securities, any recordations of the assignment of the Trust Assets to the Trustee (to the extent such recordations are required pursuant to the Transaction Documents) that have not yet been completed and such other approvals as have been obtained; (vi) The sale of the Offered Securities to be purchased by the Underwriters pursuant to this Agreement and the consummation of any of the transactions contemplated by the terms of the Transaction Documents or this Agreement do not conflict with or result in a breach or violation of any material term or provision of, or ~~filing with~~constitute a default under, the certificate of incorporation or by-laws of the Company, or any ~~Virginia~~ indenture or other agreement or instrument to which the Company is a party or by which it is bound, or any California or federal statute or regulation applicable to the Company or an order of any California or federal court, regulatory body, administrative agency or governmental body having jurisdiction over the Company; and (vii) There are no legal or governmental actions, investigations or proceedings pending to which the Company is a party, or, to the best knowledge of such counsel, threatened against the Company, (A) asserting the invalidity of this Agreement, the Transaction Documents or the Offered Securities, (B) seeking to prevent the issuance of the Offered Securities or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (C) which might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, this Agreement, the Transaction Documents or the Offered Securities or (D) seeking to affect adversely the federal income tax attributes of the Offered Securities as described in the related Free Writing Prospectus and Prospectus under the heading “Federal Income Tax Consequences.” For purposes of the foregoing, such counsel may state that it has not regarded any legal or governmental actions, investigations or proceedings to be “threatened” unless the potential litigant or governmental authority has manifested to the legal department of the Company a present intention to initiate such proceedings. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement and the Transaction Documents. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Company or its affiliates. Such opinion may be qualified as an opinion only on the General Corporation Law of the State of Delaware, the laws of the State of California and the federal law of the United States. To the extent that such counsel relies upon the opinion of other counsel in rendering any portion of its opinion, the opinion of such other counsel shall be attached to and delivered with the opinion of such counsel that is delivered to the Underwriters. (f) The Seller shall have furnished to the Underwriters an opinion, dated the related Closing Date, of counsel to the Seller (who may be an employee of the Seller), substantially to the effect that: (i) The Seller has been duly organized and is validly existing as a federal savings bank in good standing under the laws of the United States; (ii) The related Terms Agreement and the Transaction Documents to which the Seller is a party have each been duly authorized, executed and delivered by the Seller; (iii) No consent, approval, authorization or order of any California or federal court or governmental agency or ~~authority or any Virginia court~~ body is required on for the ~~part~~ consummation by the Seller of the ~~Seller~~ transactions contemplated by the terms of this Agreement, or the Transaction Documents except any such as may be required under ~~applicable Virginia~~ the “blue sky” or state securities laws of any jurisdiction in connection with the offering, sale or acquisition of the Offered Securities, any recordations of the assignment of the Trust Assets to the Trustee (to the extent such recordations are required pursuant to the Transaction Documents) that have not yet been completed and any approvals as have been obtained; (iv) The consummation of any of the transactions contem

Appears in 4 contracts

Sources: Underwriting Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2006-L4), Underwriting Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2006-L2), Underwriting Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2007-L1)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Securities shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the ~~date hereof~~ Time of Sale and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) ~~The Representatives~~ If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have ~~received, with respect~~ been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company’s General Counsel shall have furnished to the ~~Company, a certificate~~Representatives an opinion, dated the Closing ~~Date, of an authorized officer of the Company in which such officer,~~ Date and addressed to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ Representatives to the effect that: (i) the ~~representations~~ Company and ~~warranties~~ each of its Material Subsidiaries has been duly incorporated or organized, as the case may be, and is validly existing as a corporation or limited liability company in good standing (as applicable) under the laws of the ~~Company~~ jurisdiction in ~~this Agreement are true~~ which it is chartered or organized, with corporate or limited liability company power and ~~correct~~ authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation or limited liability company and is in good standing (as applicable) under the laws of each jurisdiction which requires such qualification, or subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; (ii) the Company’s authorized equity capitalization is as set forth in the Prospectus; the Indenture and the Securities conform in all material respects on to the description thereof contained in the Prospectus; (iii) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the ~~Closing Date~~Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (iisubject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law) and entitled to the benefits of the Indenture; (iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in (A) the ~~Company has complied~~ Time of Sale Information under the headings “Description of Debt Securities” and “Description of the Notes”; (B) the Final Prospectus under the headings, “Description of Debt Securities”, “Description of the Notes” and “Underwriting” and (C) the Registration Statement in ~~all material respects with all agreements~~ Item 15, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and ~~satisfied all conditions on its part to be performed~~ fair summaries of such legal matters, agreements, documents or ~~satisfied hereunder at or before the Closing Date,~~ proceedings; (~~iii~~A) the Registration Statement has become effective under the Act; (B) any required filing of the Basic Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been ~~declared~~ made in the manner and ~~remains effective~~within the time period required by Rule 424(b); (C) any required filing of any Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433; (D) to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or ~~are threatened by the Commission~~threatened, and ~~(iv) since~~ the ~~Time of Sale~~Registration Statement, ~~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~~ any Preliminary Prospectus and the Final Prospectus (~~references~~ other than the financial statements and other financial information contained or incorporated by reference therein and the Form T-1, as to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such ~~officer,~~ counsel need express no opinion) comply as to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied form in all material respects with ~~all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before~~ the ~~Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ applicable requirements of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respectsAct, the ~~power to own its assets~~ Exchange Act and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture ~~Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940~~ Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) respective rules thereunder; and (~~vii~~E) ~~above). Based upon and subject to the foregoing,~~ nothing has come to the attention of such ~~counsel’s attention to cause~~ counsel that causes such counsel to believe that (1) on the Effective Date or the date the Registration ~~Statement~~Statement was last deemed amended, ~~when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith),~~ and at the ~~time it became effective~~Execution Time, the Registration Statement 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~~ ; (2) the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, Final Prospectus as of its date or ~~as of~~ on the ~~date of such opinion, contained~~ Closing Date included or ~~contains~~ includes any untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (3) the Time of Sale Information as of the Time of Sale or, as amended or supplemented (if applicable) as of the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the 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 this paragraph~~ with respect to clauses (1) through (3) above, in each case other than the financial ~~statements, supporting schedules~~ statements and other financial ~~or statistical~~ information contained or incorporated by reference therein and the Form T-1, as to which such counsel need express no opinion); (vi) this Agreement has been duly authorized, executed and delivered by the Company; (vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended; (viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under the securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained; (ix) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its Material Subsidiaries pursuant to, (i) the charter or by-laws of the Company or such subsidiaries, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or such subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or such subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiaries or any of its or their properties; (x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement, ; and (xi) the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or~~ statements in the Prospectus orunder the caption “Material U.S. Federal Income Tax Considerations”, ~~in the case~~ insofar as such statements constitute a summary of the ~~Preliminary Prospectus~~U.S. federal tax laws referred to therein, are accurate and fairly summarize in all material respects the ~~omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus)~~U.S. federal tax laws referred to therein. In rendering such opinion, such counsel may rely (xA) as to matters involving the application of laws ~~other than the laws~~ of any jurisdiction other than ~~New York and~~ the State of Delaware or the Federal laws of the United ~~States~~ States, to the extent they deem proper and specified in such opinion, upon the opinion of ~~America, assume~~ other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the ~~conformity of such laws with the laws of New York~~ Underwriters and (yB) ~~rely~~ as to matters of fact, to the extent ~~deemed proper and as stated therein~~they deem proper, on certificates of responsible officers of the ~~Seller and the~~ Company and its subsidiaries and public ~~officials~~ officials. With respect to opinion (~~references~~ iii) above, such opinion may be rendered by the Company’s Deputy General Counsel with respect to the ~~Preliminary Prospectus or~~ laws of the State of New York. References to the Final Prospectus in this ~~clause~~ paragraph (b) include any ~~amendments or~~ supplements ~~thereto)~~thereto at the Closing Date. (ec) The Representatives shall have received an from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions of McGuireWoods LLP~~opinions, ~~Virginia counsel~~ dated the Closing Date and addressed to the ~~Seller~~ Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Information, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, ~~in form and substance reasonably satisfactory~~ to the ~~Representatives~~ effect that the signers of such certificate have reviewed the Registration Statement, the Time of Sale Information, the Final Prospectus, any supplements to the Final Prospectus and ~~their counsel~~this Agreement and that: (i) ~~With respect~~ the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.Closing Date; (ii) ~~With respect to certain Virginia tax consequences relating~~ to the ~~issuance~~ knowledge of such officers, no stop order suspending the effectiveness of the ~~Notes.~~Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and (iii) To since the ~~effect~~ date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Prospectus. (e) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, constituting statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters and (i) confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder; (ii) confirming that they have performed a review of the unaudited interim financial information of the Company ~~is a limited liability company duly organized~~ for the period ended on and as at the date of the unaudited financial statements of the Company included or incorporated by reference in ~~existence under~~ the ~~laws~~ Registration Statement, the Time of ~~Virginia~~ Sale Information and Final Prospectus, in accordance with Statement on Auditing Standards No. 100; and (iii) stating in effect, except as provided in Schedule I hereto, that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement, the Time of Sale Information and the ~~Company has,~~ Final Prospectus and reported on by them comply as to form in all material ~~respects~~respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the unaudited financial statements of the Company made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the period ended on and as at the date of the unaudited financial statements of the Company included or incorporated by reference in the Registration Statement, the ~~limited liability company power to own its assets~~ Time of Sale Information and ~~operate its business~~ Final Prospectus, as ~~described~~ indicated in their report which is incorporated by reference in the ~~Disclosure Materials, and had at all relevant times, and now has~~Registration Statement, the ~~limited liability company power~~ Time of Sale Information and the Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to ~~acquire~~ the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and ~~own~~ committees of the ~~Receivables~~ Company and its ~~interest in any Collateral Certificate transferred or proposed~~ subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to ~~be transferred~~ transactions and events subsequent to the ~~Issuer as described~~ date of the most recent unaudited financial statements of the Company included or incorporated by reference in the ~~Disclosure Materials.~~Registration Statement, the Time of Sale Information and the Final Prospectus, nothing came to their attention which caused them to believe that: (iv1) To any unaudited financial statements included or incorporated by reference in the ~~effect~~ Registration Statement, the Time of Sale Information and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q or in reports on Form 8-K under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus, there were any changes, at a specified date not more than three Business Days prior to the date of the letter, in the long-term debt of the Company ~~had at all relevant time,~~ and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia its subsidia

Appears in 4 contracts

Sources: Underwriting Agreement (General Mills Inc), Underwriting Agreement (General Mills Inc), Underwriting Agreement (General Mills Inc)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus, the Prospectus and all other Time of Sale Information shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus as of the Time of Sale, and ~~their~~ to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the ~~Receivables~~ Preliminary Prospectus and the ~~Collateral Certificate~~ Prospectus with respect to each such party with the requirements of Regulation AB and ~~certain other matters relating~~ that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to ~~any applicable credit enhancement~~state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With respect to certain Virginia tax consequences relating~~ The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the ~~issuance of the Notes~~Underwriters. (~~iii~~k) To The Underwriters shall have received from the ~~effect~~ Accountants, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) letters dated on or prior to the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (l) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Term Sheet (or such other FWP) by the rating agency or agencies indicated therein. (m) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (n) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (o) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (p) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (q) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (r) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 4 contracts

Sources: Underwriting Agreement (Benchmark 2020-B16 Mortgage Trust), Underwriting Agreement (COMM 2019-Gc44 Mortgage Trust), Underwriting Agreement (Benchmark 2019-B13 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Sidley Austin LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Sidley Austin LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Sidley Austin LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from KPMG LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 4 contracts

Sources: Underwriting Agreement (COMM 2015-Ccre26 Mortgage Trust), Underwriting Agreement (COMM 2015-Ccre26 Mortgage Trust), Underwriting Agreement (COMM 2014-Ubs6 Mortgage Trust)

Appears in 4 contracts

Sources: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Funding, LLC)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the Company, the Issuer and the Seller herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company, the Issuer and the Seller made pursuant to the provisions thereof, to the performance by the Company, the Issuer and the Seller in all material respects of their obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to the Company, a certificate, dated the Closing Date, of an authorized officer of the Company in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.”[Reserved] (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ~~and~~ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) The Bank is validly existing as a national banking association under the laws of the United States, and the Bank has the corporate power to acquire, own and service the Receivables and to acquire and own its interest in any related Funds Collateral as transferred to the Company as described in the Preliminary Prospectus and Prospectus. (ii) The Bank has the corporate power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of Program Agreement to which the Bank is a party has been duly authorized by all necessary corporate action on the part of the Bank and has been duly executed and delivered by the Bank. (iv) No consent, approval or authorization of, or filing with, any United States governmental agency or authority is required on the part of the Bank under United States federal law for the consummation by the Bank of the transactions set forth in the Program Agreements to which it is a party, except such as have been obtained or made and except for such filings as may be required to perfect the security interest in the Receivables and any related Funds Collateral pursuant to the Receivables Purchase Agreement. (v) No consent, approval or authorization of, or filing with, any United States governmental agency or authority is required on the part of the Company under United States federal law for the consummation by the Company of the transactions set forth in the Program Agreements to which it is a party, except such as have been obtained or made and except for such filings as may be required to perfect the security interest in the Receivables and any related Funds Collateral pursuant to the Pooling and Servicing Agreement or in the Collateral Certificate pursuant to the Transfer Agreement. (vi) None of the execution and delivery by the Bank of the Program Agreements to which it is party, the performance by the Bank of its obligations under the Program Agreements to which it is a party or the transfer by the Bank of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer will, (A) result in a violation of any of the terms of the applicable organizational documents of the Bank, each as amended, (B) result in a violation of any rule, statute or regulation, to the extent the foregoing relate to United States federal law, of any United States regulatory body, or administrative or governmental agency having jurisdiction over the Bank, or (C) result in a breach of any of the terms of or constitute a default under the terms of any indenture or other material agreement or instrument to which the Bank is a party and identified in such opinion; provided, however, it shall not be necessary to express any opinion with respect to any federal or state securities or Blue Sky laws. (vii) None of the execution and delivery by the Company of the Program Agreements to which it is a party, the performance by the Company of its obligations under the Program Agreements to which it is a party or the transfer by the Bank of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer will, (A) result in a violation of any rule, statute or regulation, to the extent the foregoing relate to United States federal law, of any United States regulatory body, or administrative or governmental agency having jurisdiction over the Company, or (B) result in a breach of any of the terms of or constitute a default under the terms of any indenture or other material agreement or instrument to which the Company is a party and identified in such opinion; provided, however, it shall not be necessary to express any opinion with respect to any federal or state securities or Blue Sky laws. (viii) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the ~~legal,~~ valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller in accordance with its terms. (iiix) 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (~~iii~~x) The Indenture has been qualified under the Trust Indenture Act. (ivxi) 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. (vxii) Each of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vixiii) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ “Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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~~xiv) The statements in the Preliminary Prospectus and the Prospectus 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. (~~viii~~xv) 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. (ixxvi) 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. (xxvii) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vixiii) and (~~vii~~xiv) 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, when taken together with the Ratings Issuer Free Writing Prospectus (in each case, excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ~~Prospectus~~ Prospectus, or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant ~~time~~times, and now has, the limited liability company power and authority to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party and has taken all necessary limited liability company action to duly authorize the execution, delivery and performance thereof. (v) To the effect that, to the extent governed by the laws of Virginia, the Company has duly executed and delivered each Program Agreement to which it is a party. (vvi) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia law for the due performance by the Seller of any Program Agreement to which it is a party, except for (A) such consents, approvals, authorizations or filings as have been previously obtained or made and (B) such filings as may be necessary to perfect or continue the perfection of the security interest in the Receivables granted pursuant to the Receivables Purchase Agreement. (vii) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Company under applicable Virginia law for the due performance by the Company of any Program Agreement to which it is a party, except for (A) such consents, approvals, authorizations or filings as have been previously been obtained or made, (B) such filings as may be necessary to perfect or conti

Appears in 4 contracts

Sources: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Funding, LLC)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Stock shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and ~~the Closing~~ each Delivery Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the ~~statements of the Company, the Issuer and the Seller made~~ Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to ~~the provisions thereof~~this Section 6, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its respective obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The ~~Representatives~~ Final Prospectus shall have ~~received~~been filed with the Commission pursuant to Rule 424 not later than 10:00 a.m., New York City time, on the business day following the date of this Agreement or such later date and time as shall be consented to in writing by the Representatives. (b) No order suspending the effectiveness of the Registration Statement, as amended from time to time, shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been complied with ~~respect~~ to the reasonable satisfaction of the Representatives. (c) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been any change or decrease specified in the letter referred to in paragraph (g) of this Section 6 which, in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the offering and delivery of the Stock as contemplated by the Registration Statement and the Final Prospectus. (d) The Company shall have furnished to the Representatives the opinion of a Deputy General Counsel or the Chief Legal Officer for the Company, dated the day of each Delivery Date to the effect that: (i) The Company has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its incorporation with all requisite corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus. (ii) The Stock conforms in all material respects to the descriptions thereof contained in the Final Prospectus. (iii) The Company has an authorized capitalization as set forth in the Final Prospectus, and all of the issued shares of capital stock of the Company (including the shares of Stock being delivered on such Delivery Date) have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; (iv) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Stock pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel; (v) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated in this Agreement, except for such consents, approvals, authorizations or orders as have been obtained under the Securities Act and such as may be required under the Exchange Act and the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Stock by the Underwriters. (vi) Such counsel does not know of any contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules. (vii) To the best of such counsel's knowledge, neither the Company nor any of its Named Subsidiaries is in violation of its corporate charter or by-laws, or in default under any material agreement, indenture or instrument known to such counsel, the effect of which violation or default would be material to the Company and its subsidiaries taken as a ~~certificate~~whole. (viii) This Agreement has been duly authorized, ~~dated~~ executed and delivered by the ~~Closing Date~~Company; the execution, delivery and performance of ~~an authorized officer~~ this Agreement by the Company will not constitute a breach of, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the assets of the Company or any of its Named Subsidiaries pursuant to the terms of, or constitute a default under, any material agreement, indenture or instrument known to such counsel and to which the Company or any of its Named Subsidiaries is a party of is bound, or result in a violation of the corporate charter or by-laws of the Company or any of its Named Subsidiaries or any order, rule or regulation known to such counsel of any court or governmental agency having jurisdiction over the Company, any of its Named Subsidiaries or any of their respective properties, the effect of which ~~such officer~~would be material to the Company and its subsidiaries taken as a whole. (ix) The Registrations Statement has become effective under the Securities Act, and, to the best of ~~his or her~~ the 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 and remains effectivesuch counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no ~~proceedings~~ proceeding for that purpose ~~have been instituted~~ is pending or ~~are~~ threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (bx) The ~~Representatives shall have received~~Registration Statement, ~~with respect~~ the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the ~~Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer,~~ financial statements or other financial or statistical data included or incorporated by reference therein) comply as to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied form in all material respects with ~~all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before~~ the ~~Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ requirements of the ~~Seller’s credit card business, except as set forth in or contemplated in~~ Securities Act and the ~~Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto)~~Rules. (cxi) ~~The Representatives shall have received an opinion~~ If the Stock is to be listed on the NYSE, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Stock with the NYSE, and such counsel has no reason to believe that the Stock will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution. (xii) Each of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association Named Subsidiaries is a ~~national banking association~~ duly organized and validly existing corporation in good standing under the laws of the ~~United States,~~ jurisdiction of its incorporation with all requisite corporate power and ~~the Bank has, in all material respects, the power~~ authority to own ~~its assets~~ and operate its properties and to conduct its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Final Prospectus. Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party has been duly authorized by all necessary limited liability company action on the part of the Company and ~~has~~ its Named Subsidiaries is duly qualified to do business as a foreign corporation, is in good standing and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the case may be, in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it require such qualification or registration and where the failure to so qualify or register would have a material adverse effect on the Company and its subsidiaries taken as a whole. (xiii) All the outstanding shares of capital stock of each of the Company's Named Subsidiaries have been duly ~~executed~~ and ~~delivered~~ validly authorized and issued and are fully paid and non-assessable and, except for directors' qualifying shares, are owned by the Company ~~and when the Collateral Certificate has been authenticated and delivered in accordance with the terms~~ or a subsidiary of the ~~Pooling~~ Company free and ~~Servicing Agreement~~clear of any claims, ~~the Collateral Certificate will be duly~~ liens, encumbrances and ~~validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement~~security interests. (vxiv) ~~No consent, approval, authorization or order of, or filing with,~~ Such counsel does not know of any ~~United States governmental agency or authority~~ litigation or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, except such as have been obtained governmental proceeding pending 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to threatened against the Company or ~~the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of~~ any of its subsidiaries which would affect the ~~terms~~ subject matter of ~~(i) the applicable organizational documents of the Bank~~ this Agreement or ~~the Company, each as amended, or (ii) any rule, order (known~~ is required to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise be disclosed in the ~~Preliminary~~ Final Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which ~~if adversely determined would materially~~ is not disclosed and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Actcorrectly summarized therein. Such opinion shall ~~specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (~~also contain a statement that although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel is not passing upon and are correct in all material respects. (vii) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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 does not assume any responsibility 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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~~ the statements contained in the Registration Statement and the Final Prospectus (except as to those matters stated in ~~paragraphs~~ paragraph (viii) ~~and (vii) above~~of such opinion)~~. Based upon and subject to the foregoing~~, ~~nothing has come to such counsel’s attention to cause~~ such counsel has no reason to believe that (i) the Registration Statement, ~~when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective~~as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading,~~ misleading or ~~that~~ (ii) the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or Final Prospectus contains any untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~it being understood~~ except that ~~such counsel has not been requested to and does not make any comment in this paragraph with respect~~ no opinion need be expressed as to the financial ~~statements, supporting schedules and~~ statements or other financial or statistical ~~information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus~~ data included or ~~the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus~~incorporated by reference therein). In rendering such opinion, such counsel may ~~(x) as~~ rely upon opinions of local counsel satisfactory to the Representatives for matters ~~involving the application of laws other than the laws of any jurisdiction other than~~ not governed by New York law and ~~the United States of America, assume the conformity of such laws with the laws of New York and (y)~~ may rely as to matters of fact, to the extent ~~deemed proper and as stated therein~~such counsel deems proper, on upon certificates or affidavits of ~~responsible~~ officers of ~~the Seller and~~ the Company and public ~~officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto)~~officials. (e) The Representatives shall have received an from Underwriters' Counsel such opinion or ~~opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company~~opinions, dated the ~~Closing~~ day of such Delivery Date, ~~in form~~ with respect to the issuance and ~~substance~~ sale of the Stock, the Registration Statement, the Final Prospectus and other related matters as the Representatives may reasonably ~~satisfactory~~ require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (f) The Company shall have furnished to the Representatives a certificate of its Chief Executive Officer, its President or any Managing Director or Vice President and its Chief Financial Officer or its Treasurer, dated the day of each Delivery Date, to the effect that, to the best of their ~~counsel~~knowledge after due inquiry: (i) ~~With respect to the perfection~~ The representations and warranties of the ~~Company’s interest~~ Company in this Agreement are true and correct in all material respects on and as of such Delivery Date with the ~~Receivables~~same effect as if made on such Delivery Date, ~~the perfection of the Master Trust Trustee’s interest in the Receivables~~ and the ~~Collateral Certificate~~ Company has complied with all the agreements and ~~certain other matters relating~~ satisfied all the conditions on its part to ~~any applicable credit enhancement~~be performed or satisfied at or prior to such Delivery Date. (ii) ~~With~~ No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened. (x) The Registration Statement does not contain 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, (y) the Final Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (z) since the effective date of the Registration Statement there has not occurred any event required to be set forth in an amended or supplemented prospectus which has not been so set forth. (g) At each Delivery Date, a nationally recognized firm of independent public accountants shall have furnished to the Representatives a letter, dated the day of such Delivery Date, confirming that they are independent auditors to the Company within the meaning of the Securities Act and in form and substance satisfactory to the Representatives, stating in effect that: (i) In their opinion, the consolidated financial statements of the Company and its subsidiaries, and the supporting schedules, included in the Registration Statement and the Final Prospectus and audited by them comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the related published rules and regulations thereunder. (ii) On the basis of a reading of the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company and Lehman, carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards), a reading of the minutes of the meetings of the directors of the Company and Lehman, and inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of the Company and its subsidiaries, as to transactions and events subsequent to the date of the most recent audited consolidated financial statements included in the Registration Statement and the Final Prospectus, nothing came to their attention that caused them to believe that: (A) any material modifications should be made to the unaudited consolidated financial statements of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus, for them to be in conformity with generally accepted accounting principles; and such financial statements do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the published instructions, rules and regulations thereunder. (B) the unaudited capsule information of the Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus does not agree with the amounts set forth in the unaudited consolidated financial statements of the Company from which it was derived or was not determined on a basis substantially consistent with that of the corresponding financial information in the latest audited financial statements of the Company included in the Registration Statement and the Final Prospectus. (C) (I) as of the latest date as of which the Company and its subsidiaries have monthly financial statements, there was any decrease in the capital stock, additional paid-in capital or retained earnings, or increase in long-term indebtedness of the Company and its subsidiaries, as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus, (II) with respect to ~~certain Virginia tax consequences relating~~ the period subsequent to the ~~issuance~~ date of the ~~Notes~~most recent financial statements included in the Registration Statement and the Final Prospectus and extending through the latest date as of which the Company and its subsidiaries have monthly financial statements, there was a consolidated net loss or (III) with respect to the amounts of net capital or excess net capital of Lehman determined pursuant to Commission Rule 15c3-1 and shown in the most recent financial statement of Lehman filed pursuant to Commission Rule 17a-5, there has been any decrease in such amounts as compared with the amounts shown in the most recent consolidated financial statements included in the Registration Statement and the Final Prospectus; (D) as of a specified date not more than three business days prior to the date of the letter, there was any decrease in the capital stock or additional paid-in capital, or increase in long-term indebtedness of the Company and its subsidiaries, as compared with the amounts shown in the most recent consolidated statement of financial condition of the Company and its subsidiaries included in the Registration Statement and the Final Prospectus; except in all instances for increase or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof, unless said explanation is not deemed necessary by the Representatives. (iii) To If pro forma financial statements are included in the ~~effect that~~ Registration Statement or the Final Prospectus, (x) they have read such pro forma financial statements, (y) they have made inquiries of certain officials of the Company ~~is a limited liability company duly organized~~ who have responsibility for financial and ~~in existence under the laws~~ accounting matters of ~~Virginia and~~ the Company ~~has,~~ as to the basis for their determination of the pro forma adjustments and whether such pro forma financial statements comply as to form in all material ~~respects,~~ respects with the ~~limited liability company power to own its assets~~ applicable accounting requirements of Rule 11-02 of Regulation S-X and ~~operate its business as described~~ (z) they have proved in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part arithmetic accuracy of the ~~Seller under applicable Virginia~~ application of the pro forma adjust

Appears in 4 contracts

Sources: Underwriting Agreement (Lehman Brothers Holdings Inc), Underwriting Agreement (Lehman Brothers Holdings Capital Trust Iii), Underwriting Agreement (Lehman Brothers Holdings Capital Trust V)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Sidley Austin LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Sidley Austin LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and ~~their~~ to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the ~~Receivables~~ case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the ~~Collateral Certificate and certain other matters relating~~ Underwriters or accompanied by reliance letters to ~~any applicable credit enhancement~~the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With respect~~ The Underwriters shall have received from Sidley Austin LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters. (k) The Underwriters shall have received from KPMG LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (l) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (m) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (n) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~o) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (p) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (q) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (r) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 4 contracts

Sources: Underwriting Agreement (COMM 2015-Lc23 Mortgage Trust), Underwriting Agreement (COMM 2015-Lc23 Mortgage Trust), Underwriting Agreement (COMM 2015-Ccre24 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the Offered Notes ~~will~~ shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller herein as of the date hereof and the Closing Date~~Company contained in this Agreement, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional conditions ~~precedent~~applicable to the Note Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted, ~~with respect~~ or to the knowledge of the Company, threatened by the Commission. (b) The Company shall have furnished to the Underwriters a ~~certificate~~certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of ~~an authorized officer of~~ such certificate has carefully examined the Transaction Documents to which the Company ~~in which such officer~~is a party, and that, to the best of ~~his or her~~ such person’s knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of the Company in this Agreement and the Transaction Documents to which the Company is a party are true and correct in all material ~~respects on~~ respects, and ~~as of the Closing Date, (ii)~~ the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date. (c) The Underwriters shall have received on the Closing Date a signed opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters, dated the Closing Date and addressed to the Underwriters, to the effect that: (i) the Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware; Holding is a corporation validly existing and in good standing under the laws of the State of Delaware; and each of the Company and Holding has full power and authority to enter into and perform its obligations under this Agreement and the Transaction Documents and to consummate the transactions contemplated hereby and thereby; (ii) the execution and delivery by each of the Bank, GECC, GECS, Holding, the Issuer and the Company (each, a “Specified Entity”) of this Agreement (if applicable) and the Transaction Documents to which it is a party, and the consummation by each of the transactions contemplated thereby, will not violate any applicable law, statute or governmental rule or regulation; (iii) the execution and delivery by each Specified Entity of this Agreement (if applicable) and the Transaction Documents to which it is a party does not, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of this opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (iv) the execution and delivery by each of the Company and Holding of this Agreement and the Transaction Documents to which it is a party do not, and the consummation by the Company of the transactions contemplated thereby to occur on the date of this opinion will not, violate or contravene any term or provision of the Certificate of Formation or the Limited Liability Company Agreement of the Company or the Certificate of Incorporation or By-Laws of Holding; (v) each of the Transaction Documents (other than the Trust Agreement) constitutes a legal, valid and binding obligation of each of GECC, GECS, the Issuer, the Company and Holding that is a party thereto, enforceable against each such party in accordance with its terms; (vi) each of the Notes is in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified herein or in the Note Purchase Agreement, as applicable, it will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture; (vii) the Issuer is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, required to be registered under the Investment Company Act of 1940, as amended; (viii) the Registration Statement has become effective under the Act, and the Prospectus has been ~~declared~~ filed with the Commission pursuant to Rule 424(b) thereunder in the manner and ~~remains effective~~within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~has been issued~~ and the Prospectus and no proceedings for that purpose have been ~~instituted or are threatened by~~ instituted; (ix) the ~~Commission, and (iv) since the Time of Sale, there has been no material adverse change~~ statements in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Base Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~The Trust—Perfection and Priority of Security Interests” and “~~Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇~~ —Conservatorship and ~~▇▇▇▇▇▇ LLP, special counsel for the Company~~ Receivership; Bankruptcy,” and “ERISA Considerations” and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the ~~Preliminary~~ Prospectus ~~and the Prospectus~~ Supplement under the ~~headings~~ heading “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus under the headings “Certain Legal Aspects of the Receivables” and “Benefit Plan Investors,Structural Summary—ERISA Considerations” 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. (viii) 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. (ix) 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.; (x) In the ~~event~~ Transaction Documents and the ~~Federal Deposit Insurance Corporation were~~ Notes conform in all material respects to ~~be appointed~~ the descriptions thereof contained in the Prospectus; (xi) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as ~~conservator or receiver for~~ amended and complies as to form with the ~~Bank pursuant to Section 11(c)~~ Trust Indenture Act of 1939 and the rules and regulations of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration Commission thereunder; and (xii) each of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, as of its Effective Date, and the ~~Preliminary~~ Prospectus, as of its date, complied as to form in all material respects with the ~~Ratings Issuer Free Writing Prospectus~~ requirements of the Act and the ~~Prospectus~~ rules and ~~have considered~~ regulations under the ~~matters required~~ Act, except that such counsel need not express any opinion as to ~~be stated~~ the financial and statistical data included therein or excluded therefrom or the exhibits to the Registration Statement and, except as, and to the ~~matters stated therein~~extent set forth in paragraphs (ix) and (x), ~~although they are~~ such counsel need not ~~independently verifying~~ assume any responsibility for the accuracy, completeness or fairness of such statements (except as stated in paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration ~~Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement or the ~~Prospectus or, in the case of the Preliminary~~ Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (ed) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated~~ on the Closing ~~Date~~Date a signed opinion of ▇▇▇▇▇▇ ▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the ~~Representatives~~ Underwriters and ~~their counsel~~counsel to the Underwriters, dated the Closing Date and addressed to the Underwriters, to the effect that: (i) ~~With respect to~~ the ~~perfection~~ Bank is (A) duly organized and validly existing as a Federal savings bank in good standing under the laws of the ~~Company’s interest~~ United States and (B) duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ~~Receivables~~conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the ~~perfection of the Master Trust Trustee’s interest in~~ failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Receivables ~~and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~Sale Agreement; (ii) ~~With respect to certain Virginia tax consequences relating to~~ the ~~issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized~~ Bank has all requisite corporate power and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power authority to execute, deliver and perform its obligations under the ~~terms~~ Receivables Sale Agreement and ~~provisions~~ to consummate the transactions provided for therein; (iii) the execution, delivery and performance by the Bank of the Receivables Sale Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite corporate action on the part of the Bank; (iv) the Receivables Sale Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (v) the execution, delivery and performance by the Bank of the Receivables Sale Agreement and the consummation by the Bank of the transactions provided for therein, do not and will not (A) contravene, violate or constitute a default under any provision of the certificate of incorporation or By-laws of the Bank, (B) to the best of such counsel’s knowledge, contravene or violate any judgment, injunction, order or decree, to which the Bank or its property is subject, (C) to the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement and the Receivables Sale Agreement or (D) contravene violate, conflict with or constitute a default under any agreement, lease, indenture, trust, deed, mortgage, or other instrument of which such counsel is aware to which the Bank is a party or by which the Bank is bound. (e) The Underwriters shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇ ▇▇, Vice President and Counsel, Capital Markets for GE Capital, Retail Finance, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters, dated the Closing Date and addressed to the Underwriters to the effect that: (i) each ~~Program~~ of GECC and GECS is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement to which it is a ~~party~~party in the various capacities set forth therein; (ii) the execution, delivery and performance by each of GECC and GECS of the Servicing Agreement, the Administration Agreement and the Contribution Agreement to which it is a party and the consummation by GECC and GECS of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of GECC and GECS; (iii) the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement to which it is a party have been duly and validly executed and delivered by GECC and GECS; and (iv) the execution and delivery by each of GECC and GECS of the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement to which it is a party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or By-laws of GECC or, with respect to the Assignment Agreement, GECS, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which GECC or, with respect to the Assignment Agreement, GECS is a party or by which GECC or, with respect to the Assignment Agreement, GECS is bound, or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over GECC or, with respect to the Assignment Agreement, GECS. (f) The Underwriters shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel for the Owner Trustee, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters, dated the Closing Date and addressed to the Underwriters, to the effect that: (i) the Owner Trustee is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware; (ii) the Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and as trustee under the Administration Agreement, and to consummate the transactions contemplated thereby; (iii) the Owner Trustee has duly authorized, executed and delivered the Trust Agreement and the Administration Agreement, as trustee, and the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms; and (iv) neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee contemplated thereby, (A) is in violation of the charter or bylaws of the Owner Trustee or of any law, governmental rule or regulation of the State of Delaware or of the federal laws of the United States governing the trust powers of the Owner Trustee and (B) 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 under the laws of the State of Delaware or the federal laws of the United States governing the trust powers of the Owner Trustee. (g) The Underwriters shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Delaware counsel for the Issuer, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters, dated the Closing Date and addressed to the Underwriters, to the effect that: (i) the Issuer has been duly formed and is validly existing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq., and has the power and authority under the Trust Agreement and the Delaware Statutory Trust Act to execute, deliver and perform its obligations under the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, dated as of September 25, 2003, among the Indenture Trustee, the Issuer, and the Custodian (the “Custody and Control Agreement”) and the Transfer Agreement; (ii) the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, the Transfer Agreement, the Notes to be issued by the Issuer on the Closing Date, and the Certificates have been duly authorized and executed by the Issuer; (iii) the Trust Agreement is a legal, valid and binding obligation of the Company and the Owner Trustee, enforceable against the Company and the Owner Trustee, in accordance with its terms; (iv) neither the execution, delivery or performance by the Issuer of the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement or the Transfer Agreement, nor the consummation by the Issuer of any of the transactions contemplated thereby, (A) 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 Secretary of State, or (B) is in violation of the Trust Agreement or of any law, rule or regulation of the State of Delaware applicable to the Issuer; (v) To under § 3805 (b) and (c) of the ~~effect that~~ Delaware Statutory Trust Act, (A) no ~~consent, approval or authorization~~ creditor of any Certificateholder shall have any right to obtain possession of, or ~~filing with~~otherwise exercise legal or equitable remedies with respect to, ~~any Virginia governmental agency or authority or any Virginia court is required on~~ the ~~part~~ property of the ~~Seller~~ Issuer except in accordance with the terms of the Trust Agreement, and (B) except to the extent otherwise provided in the Trust Agreement, a Certificateholder (including the Company in its capacity as such) has no interest in specific Issuer property; (vi) under ~~applicable Virginia~~ the Delaware Statutory Trust Act, the Issuer is a separate legal entity and, assuming that the Transfer Agreement conveys good title to the Issuer Estate (as defined in the Trust Agreement) to the Issuer as a true sale and not as a security arrangement, the Issuer rather than the Certificateholders will hold whatever title to the Issuer property as may be conveyed to it from time to time pursuant to the Transfer Agreement, except to the extent that the Issuer has taken action to dispose of or oth

Appears in 3 contracts

Sources: Underwriting Agreement (GE Capital Credit Card Master Note Trust), Underwriting Agreement (GE Capital Credit Card Master Note Trust), Underwriting Agreement (GE Capital Credit Card Master Note Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the Offered Notes ~~will~~ shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller herein as of the date hereof and the Closing Date~~Company contained in this Agreement, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional conditions ~~precedent~~applicable to the Note Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted, ~~with respect~~ or to the knowledge of the Company, threatened by the Commission. (b) The Company shall have furnished to the Representatives a ~~certificate~~certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of ~~an authorized officer of~~ such certificate has carefully examined the Program Documents to which the Company ~~in which such officer~~is a party, and that, to the best of ~~his or her~~ such person’s knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of the Company in this Agreement and the Program Documents to which the Company is a party are true and correct in all material ~~respects on~~ respects, and ~~as of the Closing Date, (ii)~~ the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date. (c) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware; Holding is a corporation validly existing and in good standing under the laws of the State of Delaware; and each of the Company and Holding has full power and authority to enter into and perform its obligations under this Agreement and the Program Documents and to consummate the transactions contemplated hereby and thereby; (ii) the execution and delivery by each of the Bank, GECC, GECS, Holding, the Issuer and the Company (each, a “Specified Entity”) of this Agreement (if applicable) and the Program Documents to which it is a party, and the consummation by each of the transactions contemplated thereby, will not violate any applicable law, statute or governmental rule or regulation; (iii) the execution and delivery by each Specified Entity of this Agreement (if applicable) and the Program Documents to which it is a party does not, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of this opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (iv) the execution and delivery by each of the Company and Holding of this Agreement and the Program Documents to which it is a party do not, and the consummation by the Company of the transactions contemplated thereby to occur on the date of this opinion will not, violate or contravene any term or provision of the Certificate of Formation or the Limited Liability Company Agreement of the Company or the Certificate of Incorporation or By-Laws of Holding; (v) each of the Program Documents (other than the Trust Agreement) constitutes a legal, valid and binding obligation of each of GECC, GECS, the Issuer, the Company and Holding that is a party thereto, enforceable against each such party in accordance with its terms; (vi) each of the Offered Notes is in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified herein, it will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture; (vii) the Issuer is not now, and immediately following the issuance of the Offered Notes pursuant to the Indenture will not be, required to be registered under the Investment Company Act of 1940, as amended; (viii) the Registration Statement has become effective under the Act, and the Prospectus has been ~~declared~~ filed with the Commission pursuant to Rule 424(b) thereunder in the manner and ~~remains effective~~within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~has been issued~~ and the Prospectus and no proceedings for that purpose have been ~~instituted or are threatened by~~ instituted; (ix) the ~~Commission, and (iv) since the Time of Sale, there has been no material adverse change~~ statements in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Base Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~The Sponsor—Safety and Soundness,” “The Trust—Perfection and Priority of Security Interests” and “~~Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇~~ —Conservatorship and ~~▇▇▇▇▇▇ LLP, special counsel for the Company~~ Receivership; Bankruptcy,” and “Certain ERISA Considerations” and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the ~~Preliminary~~ Prospectus ~~and the Prospectus~~ Supplement under the ~~headings~~ heading “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus under the headings “Structural Summary—Certain ~~Legal Aspects of the Receivables” and “Benefit Plan Investors,~~ERISA Considerations” to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by ~~such counsel~~ us and are correct in all material respects. (viii) 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. (ix) 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.; (x) In the ~~event~~ Program Documents and the ~~Federal Deposit Insurance Corporation were~~ Offered Notes conform in all material respects to ~~be appointed~~ the descriptions thereof contained in the Prospectus; (xi) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as ~~conservator or receiver for~~ amended and complies as to form with the ~~Bank pursuant to Section 11(c)~~ Trust Indenture Act of 1939 and the rules and regulations of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration Commission thereunder; and (xii) each of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, as of its effective date, and the ~~Preliminary~~ Prospectus, as of its date, complied as to form in all material respects with the ~~Ratings Issuer Free Writing Prospectus~~ requirements of the Act and the ~~Prospectus~~ rules and ~~have considered~~ regulations under the ~~matters required~~ Act, except that such counsel need not express any opinion as to ~~be stated~~ the financial and statistical data included therein or excluded therefrom or the exhibits to the Registration Statement and, except as, and to the ~~matters stated therein~~extent set forth in paragraphs (ix) and (x), ~~although they are~~ such counsel need not ~~independently verifying~~ assume any responsibility for the accuracy, completeness or fairness of such statements (except as stated in paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration ~~Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement or the ~~Prospectus or, in the case of the Preliminary~~ Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (ed) The Representatives shall have received ~~an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated~~ on the Closing ~~Date~~Date a signed opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and Counsel for the Bank, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~With respect to~~ the ~~perfection~~ Bank is (A) duly organized and validly existing as a Federal savings bank in good standing under the laws of the ~~Company’s interest~~ United States and (B) duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ~~Receivables~~conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the ~~perfection of~~ failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the ~~Master Trust Trustee’s interest in~~ Servicing Agreement and the Receivables ~~and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~Sale Agreement; (ii) ~~With respect to certain Virginia tax consequences relating to~~ the ~~issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized~~ Bank has all requisite corporate power and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power authority to execute, deliver and perform its obligations under the ~~terms~~ Servicing Agreement and ~~provisions~~ the Receivables Sale Agreement and to consummate the transactions provided for therein; (iii) the execution, delivery and performance by the Bank of the Servicing Agreement and the Receivables Sale Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite corporate action on the part of the Bank; (iv) each of the Servicing Agreement and the Receivables Sale Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (v) the execution, delivery and performance by the Bank of each ~~Program~~ of the Servicing Agreement and the Receivables Sale Agreement and the consummation by the Bank of the transactions provided for therein, do not and will not (A) contravene, violate or constitute a default under any provision of the certificate of incorporation or By-laws of the Bank, (B) to the best of such counsel’s knowledge, contravene or violate any judgment, injunction, order or decree, to which the Bank or its property is subject, (C) to the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement and the Receivables Sale Agreement or (D) contravene violate, conflict with or constitute a default under any agreement, lease, indenture, trust, deed, mortgage, or other instrument of which such counsel is aware to which the Bank is a party or by which the Bank is bound. (e) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President and Counsel, Capital Markets for GE Consumer Finance, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives to the effect that: (i) each of GECC and GECS is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Servicer Performance Guaranty, the Administration Agreement and the Contribution Agreement to which it is a ~~party~~party in the various capacities set forth therein; (ii) the execution, delivery and performance by each of GECC and GECS of the Servicer Performance Guaranty, the Administration Agreement and the Contribution Agreement to which it is a party and the consummation by GECC and GECS of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of GECC and GECS; (iii) the Servicer Performance Guaranty, the Administration Agreement and the Contribution Agreement to which it is a party have been duly and validly executed and delivered by GECC and GECS; and (iv) the execution and delivery by each of GECC and GECS of the Servicer Performance Guaranty, the Administration Agreement and the Contribution Agreement to which it is a party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or By-laws of GECC or, with respect to the Contribution Agreement, GECS, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which GECC or, with respect to the Contribution Agreement, GECS is a party or by which GECC or, with respect to the Contribution Agreement, GECS is bound, or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over GECC or, with respect to the Contribution Agreement, GECS. (f) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel for the Owner Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Owner Trustee is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware; (ii) the Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and as trustee under the Administration Agreement, and to consummate the transactions contemplated thereby; (iii) the Owner Trustee has duly authorized, executed and delivered the Trust Agreement and the Administration Agreement, as trustee, and the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms; and (iv) neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee contemplated thereby, (A) is in violation of the charter or bylaws of the Owner Trustee or of any law, governmental rule or regulation of the State of Delaware or of the federal laws of the United States governing the trust powers of the Owner Trustee and (B) 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 under the laws of the State of Delaware or the federal laws of the United States governing the trust powers of the Owner Trustee. (g) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Issuer, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Issuer has been duly formed and is validly existing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq., and has the power and authority under the Trust Agreement and the Delaware Statutory Trust Act to execute, deliver and perform its obligations under the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, dated as of September 25, 2003, among the Indenture Trustee, the Issuer, and the Custodian (the “Custody and Control Agreement”) and the Transfer Agreement; (ii) the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, the Transfer Agreement, the Offered Notes to be issued by the Issuer on the Closing Date, and the Certificates have been duly authorized and executed by the Issuer; (iii) the Trust Agreement is a legal, valid and binding obligation of the Company and the Owner Trustee, enforceable against the Company and the Owner Trustee, in accordance with its terms; (iv) neither the execution, delivery or performance by the Issuer of the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement or the Transfer Agreement, nor the consummation by the Issuer of any of the transactions contemplated thereby, (A) 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 Secretary of State, or (B) is in violation of the Trust Agreement or of any law, rule or regulation of the State of Delaware applicable to the Issuer; (v) To under § 3805 (b) and (c) of the ~~effect that~~ Delaware Statutory Trust Act, (A) no ~~consent, approval or authorization~~ creditor of any Certificateholder shall have any right to obtain possession of, or ~~filing with~~otherwise exercise legal or equitable remedies with respect to, ~~any Virginia governmental agency or authority or any Virginia court is required on~~ the ~~part~~ property of the ~~Seller~~ Issuer except in accordance with the terms of the Trust Agreement, and (B) except to the extent otherwise provided in the Trust Agreement, a Certificateholder (including the Company in its capacity as such) has no interest in specific Issuer property; (vi) under ~~applicable Virginia~~ the Delaware Statutory Trust Act, the Issuer is a separate legal entity and, assuming that the Transfer Agreement conveys good title to the Issuer Estate (as defined in the Trust Agreement) to the Issuer as a true sale and not as a security arrangement, the Issuer rather than the Certificate

Appears in 3 contracts

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Securities shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the ~~date hereof~~ Time of Sale and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) ~~The Representatives~~ If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have ~~received, with respect~~ been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company’s General Counsel shall have furnished to the ~~Company, a certificate~~Representatives an opinion, dated the Closing ~~Date, of an authorized officer of the Company in which such officer,~~ Date and addressed to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ Representatives to the effect that: (i) the ~~representations~~ Company and ~~warranties~~ each of its Material Subsidiaries has been duly incorporated or organized, as the case may be, and is validly existing as a corporation or limited liability company in good standing (as applicable) under the laws of the ~~Company~~ jurisdiction in ~~this Agreement are true~~ which it is chartered or organized, with corporate or limited liability company power and ~~correct~~ authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation or limited liability company and is in good standing (as applicable) under the laws of each jurisdiction which requires such qualification, or subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; (ii) the Company’s authorized equity capitalization is as set forth in the Prospectus; the Indenture and the Securities conform in all material respects on to the description thereof contained in the Prospectus; (iii) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the ~~Closing Date~~Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (iisubject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law) and entitled to the benefits of the Indenture; (iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in (A) the ~~Company has complied~~ Time of Sale Information under the headings “Description of Debt Securities” and “Description of the Notes”; (B) the Final Prospectus under the headings, “Description of Debt Securities”, “Description of the Notes” and “Underwriting” and (C) the Registration Statement in ~~all material respects with all agreements~~ Item 15, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and ~~satisfied all conditions on its part to be performed~~ fair summaries of such legal matters, agreements, documents or ~~satisfied hereunder at or before the Closing Date,~~ proceedings; (~~iii~~A) the Registration Statement has become effective under the Act; (B) any required filing of the Basic Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been ~~declared~~ made in the manner and ~~remains effective~~within the time period required by Rule 424(b); (C) any required filing of any Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433; (D) to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or ~~are threatened by the Commission~~threatened, and ~~(iv) since~~ the ~~Time of Sale~~Registration Statement, ~~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~~ any Preliminary Prospectus and the Final Prospectus (~~references~~ other than the financial statements and other financial information contained or incorporated by reference therein and the Form T-1, as to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such ~~officer,~~ counsel need express no opinion) comply as to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied form in all material respects with ~~all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before~~ the ~~Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ applicable requirements of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respectsAct, the ~~power to own its assets~~ Exchange Act and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture ~~Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940~~ Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) respective rules thereunder; and (~~vii~~E) ~~above). Based upon and subject to the foregoing,~~ nothing has come to the attention of such ~~counsel’s attention to cause~~ counsel that causes such counsel to believe that (1) on the Effective Date or the date the Registration ~~Statement~~Statement was last deemed amended, ~~when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith),~~ and at the ~~time it became effective~~Execution Time, the Registration Statement 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~~ ; (2) the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, Final Prospectus as of its date or ~~as of~~ on the ~~date of such opinion, contained~~ Closing Date included or ~~contains~~ includes any untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (3) the Time of Sale Information as of the Time of Sale or, as amended or supplemented (if applicable) as of the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the 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 this paragraph~~ with respect to clauses (1) through (3) above, in each case other than the financial ~~statements, supporting schedules~~ statements and other financial ~~or statistical~~ information contained or incorporated by reference therein and the Form T-1, as to which such counsel need express no opinion); (vi) this Agreement has been duly authorized, executed and delivered by the Company; (vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended; (viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under the securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained; (ix) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its Material Subsidiaries pursuant to, (i) the charter or by-laws of the Company or such subsidiaries, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or such subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or such subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiaries or any of its or their properties; (x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement, ; and (xi) the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or~~ statements in the Prospectus orunder the caption “Material United States Federal Income Tax Considerations”, ~~in the case~~ insofar as such statements constitute a summary of the ~~Preliminary Prospectus~~United States federal tax laws referred to therein, are accurate and fairly summarize in all material respects the ~~omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus)~~U.S. federal tax laws referred to therein. In rendering such opinion, such counsel may rely (xA) as to matters involving the application of laws ~~other than the laws~~ of any jurisdiction other than ~~New York and~~ the State of Delaware or the Federal laws of the United ~~States~~ States, to the extent they deem proper and specified in such opinion, upon the opinion of ~~America, assume~~ other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the ~~conformity of such laws with the laws of New York~~ Underwriters and (yB) ~~rely~~ as to matters of fact, to the extent ~~deemed proper and as stated therein~~they deem proper, on certificates of responsible officers of the ~~Seller and the~~ Company and its subsidiaries and public ~~officials~~ officials. With respect to opinion (~~references~~ iii) above, such opinion may be rendered by ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the ~~Preliminary Prospectus or~~ laws of the State of New York. References to the Final Prospectus in this ~~clause~~ paragraph (b) include any ~~amendments or~~ supplements ~~thereto)~~thereto at the Closing Date. (ec) The Representatives shall have received an from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions of McGuireWoods LLP~~opinions, ~~Virginia counsel~~ dated the Closing Date and addressed to the ~~Seller~~ Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Information, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, ~~in form and substance reasonably satisfactory~~ to the ~~Representatives~~ effect that the signers of such certificate have reviewed the Registration Statement, the Time of Sale Information, the Final Prospectus, any supplements to the Final Prospectus and ~~their counsel~~this Agreement and that: (i) ~~With respect~~ the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.Closing Date; (ii) ~~With respect to certain Virginia tax consequences relating~~ to the ~~issuance~~ knowledge of such officers, no stop order suspending the effectiveness of the ~~Notes.~~Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and (iii) To since the ~~effect~~ date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Prospectus. (e) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, constituting statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters and (i) confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder; (ii) confirming that they have performed a review of the unaudited interim financial information of the Company ~~is a limited liability company duly organized~~ for the period ended on and as at the date of the unaudited financial statements of the Company included or incorporated by reference in ~~existence under~~ the ~~laws~~ Registration Statement, the Time of ~~Virginia~~ Sale Information and Final Prospectus, in accordance with Statement on Auditing Standards No. 100; and (iii) stating in effect, except as provided in Schedule I hereto, that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement, the Time of Sale Information and the ~~Company has,~~ Final Prospectus and reported on by them comply as to form in all material ~~respects~~respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the unaudited financial statements of the Company made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the period ended on and as at the date of the unaudited financial statements of the Company included or incorporated by reference in the Registration Statement, the ~~limited liability company power to own its assets~~ Time of Sale Information and ~~operate its business~~ Final Prospectus, as ~~described~~ indicated in their report which is incorporated by reference in the ~~Disclosure Materials, and had at all relevant times, and now has~~Registration Statement, the ~~limited liability company power~~ Time of Sale Information and the Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to ~~acquire~~ the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and ~~own~~ committees of the ~~Receivables~~ Company and its ~~interest in any Collateral Certificate transferred or proposed~~ subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to ~~be transferred~~ transactions and events subsequent to the ~~Issuer as described~~ date of the most recent unaudited financial statements of the Company included or incorporated by reference in the ~~Disclosure Materials.~~Registration Statement, the Time of Sale Information and the Final Prospectus, nothing came to their attention which caused them to believe that: (iv1) To any unaudited financial statements included or incorporated by reference in the ~~effect~~ Registration Statement, the Time of Sale Information and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q or in reports on Form 8-K under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus, there were any changes, at a specified date not more than three Business Days prior to the date of the letter, in the long-term debt of the Company ~~had at all relevant time,~~ and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia its subsid

Appears in 3 contracts

Sources: Underwriting Agreement (General Mills Inc), Underwriting Agreement (General Mills Inc), Underwriting Agreement (General Mills Inc)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus, the Prospectus and all other Time of Sale Information shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus as of the Time of Sale, and ~~their~~ to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the ~~Receivables~~ Preliminary Prospectus and the ~~Collateral Certificate~~ Prospectus with respect to each such party with the requirements of Regulation AB and ~~certain other matters relating~~ that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to ~~any applicable credit enhancement~~state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With~~ The Underwriters shall have received from counsel for the Third-Party Purchaser a favorable opinion, dated the Closing Date, with respect to ~~certain Virginia tax consequences relating~~ such matters as the Underwriters shall have reasonably requested, which will include an opinion that the Preliminary Prospectus as of the Time of Sale and the Prospectus as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the ~~issuance of~~ Underwriters or accompanied by reliance letters to the ~~Notes~~Underwriters or shall state that the Underwriters may rely upon them. (~~iii~~k) To The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the ~~effect~~ Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters. (l) The Underwriters shall have received from the Accountants, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) letters dated on or prior to the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (m) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Term Sheet (or such other FWP) by the rating agency or agencies indicated therein. (n) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (o) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (p) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (q) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (r) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (s) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 3 contracts

Sources: Underwriting Agreement (Benchmark 2026-V20 Mortgage Trust), Underwriting Agreement (Benchmark 2026-V20 Mortgage Trust), Underwriting Agreement (Benchmark 2025-V17 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The several obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Offered Securities of any Series shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company~~Company contained in this Agreement, ~~the Issuer and the Seller herein~~ as of the date ~~hereof~~ of the applicable Terms Agreement and the related Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer~~ Company of its obligations under this Agreement and the ~~Seller in all material respects of their obligations hereunder~~ applicable Transaction Documents and to the following additional conditions ~~precedent~~applicable to the related Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received,~~ been issued and no proceedings for that purpose shall have been instituted or threatened and the related Prospectus shall have been filed or mailed for filing with ~~respect~~ the Commission not later than required pursuant to the ~~Company,~~ rules and regulations of the Commission. (b) The Company shall have furnished to the Underwriters a certificate, dated the related Closing Date, of the Company, signed by an authorized officer of the ~~Company in which such officer~~Company, to the ~~best~~ effect that the signer of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the related Registration Statement, ~~shall state that~~ the related Preliminary Prospectus and Prospectus and this Agreement and that: (i) ~~the~~ The representations and warranties of the Company ~~in this Agreement~~ herein are true and correct in all material respects on and as of such Closing Date with the same effect as if made on such Closing Date, ~~(ii)~~ and the Company has complied ~~in all material respects~~ with all agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder~~ at or ~~before the~~ prior to such Closing Date, ; (~~iii~~ii) ~~the Registration Statement has been declared and remains effective, no~~ No stop order suspending the effectiveness of the related Registration Statement has been ~~issued~~ issued, and no proceedings for that purpose have been instituted or and are pending or, to his knowledge, have been threatened ~~by the Commission, and (iv) since the Time~~ as of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the such Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein.; and (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing Nothing has come to the attention of such ~~counsel’s attention to cause such counsel~~ person that would lead him to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing~~ related Preliminary Prospectus ~~(excluding any exhibits filed therewith), at the time it became effective, contained~~ and Prospectus contains any untrue statement of a material fact or ~~omitted~~ omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) The Seller shall have furnished to the Underwriters a certificate, ~~or that~~ dated the ~~Prospectus~~related Closing Date, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as~~ of the ~~date~~ Seller, signed by an authorized officer of the Seller, to the effect that (i) the signer of such ~~opinion, contained or~~ certificate has carefully examined the related Prospectus and nothing has come to the attention of such person that would lead him to believe that such Prospectus contains any untrue statement of a material fact ~~or omitted~~ with respect to the Seller or omits to state any material fact with respect to the Seller or the Trust Assets 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) ~~With respect~~ the Seller has complied with all agreements and satisfied all the conditions on its part to ~~certain Virginia tax consequences relating~~ be performed or satisfied at or prior to ~~the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence~~ such Closing Date under ~~the laws of Virginia~~ this Agreement and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement Transaction Documents to which it is a party. (vd) The Company shall have furnished to you an opinion, dated the related Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp, special counsel to the Company, substantially to the effect that: (i) The related Registration Statement and any amendments thereto have become effective under the Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of such Registration Statement has been issued and not withdrawn, no proceedings for that purpose have been instituted or threatened and not terminated; and such Registration Statement, the related Prospectus and each amendment or supplement thereto, as of their respective effective or issue dates (other than the financial and statistical information contained therein as to which such counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder and, if the applicable Series of Offered Securities includes Notes, with the requirements of the TIA and the rules and regulations thereunder; (ii) To the best knowledge of such counsel, there are no material contracts, indentures or other documents of a character required to be described or referred to in the related Registration Statement or the related Prospectus or to be filed as exhibits to such Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto; (iii) Assuming that this Agreement and each Transaction Document to which the Company and/or the Seller is a party have each been duly authorized, executed and delivered by the parties thereto, each constitutes a valid, legal and binding agreement of the Company and the Seller, as applicable, enforceable against the Company or the Seller in accordance with its terms, subject, as to enforceability to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and to general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law; and subject to limitations of public policy under applicable securities laws as to rights of indemnity and contribution thereunder; (iv) Assuming that the Offered Securities of the applicable Series have been duly and validly authorized, executed and authenticated in the manner contemplated in the relevant Transaction Documents, when delivered and paid for by the Underwriters as provided in this Agreement, such Offered Securities will be validly issued and outstanding and entitled to the benefits of the related Transaction Documents and, if such Offered Securities include Notes, such Notes will constitute the valid, legal and binding obligation of the Trust, enforceable against the Trust in accordance with their terms subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and to general principals of equity regardless of whether enforcement is sought in a proceeding in equity or at law; (v) The Offered Securities of the related Series and the related Transaction Documents conform in all material respects to the descriptions thereof contained in the related Prospectus; (vi) The statements in the related Prospectus and Prospectus Supplement, as the case may be, under the headings “Federal Income Tax Consequences,” “ERISA Considerations” and “Legal Investment,” to the extent that they constitute matters of New York or federal law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects; (vii) The Offered Securities, if any, indicated under the heading “Summary--Legal Investment” in the related Prospectus Supplement to be “mortgage related securities” will be mortgage related securities, as defined in Section 3(a)(41) of the Exchange Act, so long as such Offered Securities are rated in one of the two highest rating categories by at least one nationally recognized statistical rating organization; (viii) Either (a) the Pooling and Servicing Agreement is not required to be or (b) the Indenture has been, duly qualified under the TIA, and, in either case, the Trust is not required to be registered under the Investment Company Act of 1940, as amended; (ix) If one or more “real estate mortgage investment conduit” (“REMIC”) elections are indicated in the related Prospectus Supplement, the Trust as described in such Prospectus Supplement will qualify as a REMIC within the meaning of Section 860D of the Internal Revenue Code of 1986, as amended (the “Code”) and the indicated Classes of such Securities will be considered “regular interests” in the REMIC, assuming: (i) an election is made to treat the Trust as a REMIC, (ii) compliance with the applicable Transaction Documents and (iii) compliance with changes in the law, including any amendments to the Code or applicable Treasury regulations thereunder; and (x) If the related Prospectus Supplement indicates that one or more Classes of Offered Securities are to be treated as debt of the Trust for federal income tax purposes, such Classes will be treated as debt for federal income tax purposes and the Trust will not be considered to be a publicly traded partnership or a taxable mortgage pool. Such counsel shall also state that nothing has come to its attention that would lead such counsel to believe that the related Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the related Prospectus, as of the date of the related Prospectus Supplement, and on the related Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to (i) financial and statistical information contained therein or (ii) any description in such Prospectus of any Securities Insurer with respect to the related Offered Securities. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement and the applicable Transaction Documents. Such opinion may be qualified as an opinion only on the laws of the State of New York and the federal law of the United States. To the extent that such firm relies upon the opinion of other counsel in rendering any portion of its opinion, the opinion of such other counsel shall be attached to and delivered with the opinion of such firm that is delivered to you. (e) The Company shall have furnished to the Underwriters an opinion, dated the related Closing Date, of counsel to the Company (who may be an employee of the Company or of an affiliate of the Company), substantially to the effect ~~that no~~ that: (i) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly qualified to do business in, and is in good standing as a foreign corporation under the laws of, the State of California; (ii) The Offered Securities of the applicable Series have been duly authorized and executed and, assuming authentication and delivery in the manner contemplated in the relevant Transaction Documents, are validly issued and outstanding, and upon delivery by the Company of the Offered Securities to be purchased by the Underwriters and payment by the Underwriters of the purchase price therefor in the manner contemplated by this Agreement, the Underwriters will acquire such Offered Securities free and clear of any lien, pledge, encumbrance or other security interest other than one created or granted by any Underwriter; (iii) Each Transaction Document to which the Company is a party has been duly authorized, executed and delivered by the Company; (iv) This Agreement has been duly authorized, executed and delivered by the Company; (v) No consent, ~~approval~~ approval, authorization or ~~authorization~~ order of any California or federal governmental agency or body or any California or federal court is required for the consummation by the Company of the transactions contemplated by the terms of this Agreement or the Transaction Documents to which the Company is a party except such as may be required under the “blue sky” or state securities laws of any jurisdiction in connection with the offering, sale or acquisition of the related Offered Securities, any recordations of the assignment of the Trust Assets to the Trustee or the Indenture Trustee, as applicable (to the extent such recordations are required pursuant to the Transaction Documents) that have not yet been completed and such other approvals as have been obtained; (vi) The sale of the Offered Securities to be purchased by the Underwriters pursuant to this Agreement and the consummation of any of the transactions contemplated by the terms of the Transaction Documents or this Agreement do not conflict with or result in a breach or violation of any material term or provision of, or ~~filing with~~constitute a default under, the certificate of incorporation or by-laws of the Company, or any ~~Virginia~~ indenture or other agreement or instrument to which the Company is a party or by which it is bound, or any California or federal statute or regulation applicable to the Company or an order of any California or federal court, regulatory body, administrative agency or governmental body having jurisdiction over the Company; and (vii) There are no legal or governmental actions, investigations or proceedings pending to which the Company is a party, or, to the best knowledge of such counsel, threatened against the Company, (A) asserting the invalidity of this Agreement, the Transaction Documents or the Offered Securities, (B) seeking to prevent the issuance of the Offered Securities or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (C) which might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, this Agreement, the Transaction Documents or the Offered Securities or (D) seeking to affect adversely the Federal income tax attributes of the Offered Securities as described in the related Prospectus under the heading “Federal Income Tax Consequences.” For purposes of the foregoing, such counsel may state that it has not regarded any legal or governmental actions, investigations or proceedings to be “threatened” unless the potential litigant or governmental authority has manifested to the legal department of the Company a present intention to initiate such proceedings. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement and the Transaction Documents. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Company or its affiliates. Such opinion may be qualified as an opinion only on the General Corporation Law of the State of Delaware, the laws of the State of California and the federal law of the United States. To the extent that such counsel relies upon the opinion of other counsel in rendering any portion of its opinion, the opinion of such other counsel shall be attached to and delivered with the opinion of such counsel that is delivered to the Underwriters. (f) The Seller shall have furnished to the Underwriters an opinion, dated the related Closing Date, of counsel to the Seller (who may be an employee of the Seller), substantially to the effect that: (i) The Seller has been duly organized and is validly existing as a federal savings bank in good standing under the laws of the United States; (ii) The related Terms Agreement and the Transaction Documents to which the Seller is a party have each been duly authorized, executed and delivered by the Seller; (iii) No consent, approval, authorization or order of any California or federal court or governmental agency or ~~authority or any Virginia court~~ body is required on for the ~~part~~ consummation by the Seller of the ~~Seller~~ transactions contemplated by the terms of this Agreement, or the Transaction Documents except any such as may be required under ~~applicable Virginia~~ the “blue sky” or state securities laws of any jurisdiction in connection with the offering, sale or acquisition of the Offered Securities, any recordations of the assignment of the Trust Assets to the Trustee or the Indenture Trustee, as applicable, (to the extent such recordations are required pursuant to the Transaction Documents) that have not yet been completed and any approvals as have been obtained; (iv) The consummation of any of the transactions contemplated by the terms of this Agreement or the Transaction Documents do not conflict with or result in a breach or violati

Appears in 3 contracts

Sources: Underwriting Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series INABS 2006-B), Underwriting Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series INABS 2006-E), Underwriting Agreement (Home Equity Mortgage Loan Asset Backed Trust, Series INABS 2007-A)

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~~ Seller and the ~~Seller~~ Bank herein as of the date hereof and the Closing Date, to the accuracy of the representations and warranties of the Issuer contained in each Transaction Document to which it is a party as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer~~ Seller and the ~~Seller~~ Bank made pursuant to the provisions thereof, to the performance by the ~~Company, the Issuer~~ Seller and the ~~Seller~~ Bank in all material respects of their obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to the Company, a certificate, dated the Closing Date, of an authorized officer of the Company in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Bank, a certificate, dated the Closing Date, of an authorized officer of the Bank 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 Bank in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Bank has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s ~~credit card~~ auto loan business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general ~~counsel, deputy general counsel,~~ counsel or chief counsel for ~~transactions, or senior associate general counsel~~ transactions of Capital ~~One Bank (USA)~~One, National Association, or such other legal counsel that Capital ~~One Bank (USA)~~One, National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, with respect to certain corporate matters relating to the ~~effect that: (i) Capital One~~ Bank ~~(USA), National Association is a national banking association under the laws of the United States,~~ and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ ~~and ▇~~▇▇▇▇▇ LLP, special counsel for the ~~Company~~ Issuer, the Seller and the ~~Seller~~Bank, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, with respect to: certain corporate matters, perfection matters, matters related to the ~~effect that: (i) Each~~ creation of ~~the Pooling~~ a security interest, securities law matters, 1940 Act matters, tax matters, enforceability matters and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller in accordance with its terms. (ii) The true 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreementnonconsolidation matters. Such counsel shall also ~~state that they have participated in conferences with representatives~~ provide a “negative assurance” letter, dated as of the ~~Seller~~Closing Date, ~~the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning~~ covering the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus and the Prospectus in form 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 paragraphs (vi) and (vii) above). Based upon and subject substance reasonably satisfactory to the ~~foregoing, nothing has come to such~~ Representatives and their counsel’s attention to cause such counsel to believe that the Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received ~~an opinion or opinions of McGuireWoods~~ from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ~~Virginia~~ counsel to the ~~Seller~~ Underwriters, a “negative assurance” letter, dated as of the Closing Date, covering the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus and the ~~Company~~Prospectus in form and substance reasonably satisfactory to the Representatives; and the Bank and the Seller shall have furnished to such counsel such documents as they reasonably request in connection therewith. (f) On or before at the Closing Date, (i) a nationally recognized independent accounting firm reasonably acceptable to the Representatives shall have furnished to the Representatives a letter or letters, dated as of the date of the Preliminary Prospectus and as of the date of the Prospectus, in form and substance reasonably satisfactory to the Representatives and their counsel, confirming that they are certified independent public accountants and stating in effect that they have performed certain specified procedures with respect to the Issued Notes and the Receivables and (ii) the Accounting Firm shall have furnished to the Representatives the Accountant’s Due Diligence Report. (g) The Representatives shall have received evidence satisfactory to them that, on or before the Closing Date, UCC-1 financing statements have been filed (or have been sent for filing on the Closing Date or the next Business Day) with the appropriate UCC filing offices, reflecting the transfer of Receivables and other related property from the Bank to the Seller, the transfer of Receivables and other related property from the Seller to the Issuer and the pledge of the Receivables and other related property by the Issuer in favor of the Indenture Trustee. (h) The Representatives shall have received an opinion of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, counsel to the Indenture Trustee, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel:. (i) ~~With~~ The Representatives shall have received evidence satisfactory to them that on or before the Closing Date, all applicable UCC termination statements relating to liens of creditors of the Seller, the Issuer or the Bank or any other person on the Receivables have been filed (or have been sent for filing on the Closing Date or the next Business Day) with the appropriate filing offices, and the Representatives shall have received on or before the Closing Date contractual releases or releases terminating liens of creditors of the Seller, the Issuer, the Bank or any other person on the Receivables. (j) The Representatives shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special Delaware counsel to the Seller, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, with respect to (i) certain matters under Delaware law with respect to the ~~perfection~~ Seller and the authority of the ~~Company’s interest in~~ Seller to file a voluntary bankruptcy petition and (ii) certain corporate matters with respect to the ~~Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement~~Seller. (iik) ~~With respect to certain Virginia tax consequences relating~~ The Representatives shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the ~~issuance of~~ Owner Trustee and the ~~Notes~~Issuer, subject to customary qualifications, assumptions, limitations and exceptions dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel. (~~iii~~l) To The Ratings Issuer Free Writing Prospectus shall have been filed with the ~~effect~~ Commission, and the Representatives shall have received evidence of ratings letters that are reasonably satisfactory to the ~~Company is a limited liability company duly organized~~ Representatives from each Hired NRSRO and that assign ratings to the Notes at least equal to the ratings specified in ~~existence~~ the Ratings Issuer Free Writing Prospectus. (m) The Representatives shall have received such information, certificates and documents as the Representatives and their counsel may reasonably request. (n) All actions required to be taken and all filings required to be made by the Seller or the Issuer under the ~~laws~~ Act before the Closing Date for the Notes shall have been duly taken or made; and before the Closing Date, no stop order suspending the effectiveness of ~~Virginia~~ the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the ~~Company has~~knowledge of the Seller or the Issuer, threatened by the Commission. (o) The Representatives shall have received an opinion of in-house counsel to the Asset Representations Reviewer, subject to customary qualifications, assumptions, limitations and exceptions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel. (p) The Issuer shall have executed and delivered to DTC a standard “Letter of Representations” sufficient to cause DTC to qualify each class of Notes for inclusion in DTC’s book-entry registration and transfer system, and each class of Notes shall have been approved by DTC for inclusion on its book-entry registration and transfer system. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material ~~respects~~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 Representatives and their counsel, this Agreement and all their obligations hereunder may be canceled at, or at any time before, the ~~limited liability company power~~ Closing Date by the Representatives. Notice of such cancellation shall be given to ~~own its assets and operate its business as described in~~ the ~~Disclosure Materials, and had at all relevant times, and now has~~Issuer, the ~~limited liability company power to acquire~~ Bank and own the Receivables and its interest in any Collateral Certificate transferred or proposed to be transferred to the Issuer as described in the Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller ~~under applicable Virginia~~ in writing or by telephone or telecopy confirmed in writing.

Appears in 3 contracts

Sources: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2020-1), Underwriting Agreement (Capital One Prime Auto Receivables Trust 2019-2), Underwriting Agreement (Capital One Prime Auto Receivables Trust 2019-1)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and ~~the Closing~~ each Delivery Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the ~~statements of the Company, the Issuer and the Seller made~~ Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to ~~the provisions thereof~~this Section 6, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its respective obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The ~~Representatives~~ Final Prospectus shall have ~~received~~been filed with the Commission pursuant to Rule 424 not later than 10:00 a.m., ~~with respect to~~ New York City time, on the ~~Company, a certificate, dated~~ business day following the ~~Closing Date,~~ 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~~ or such later date and ~~correct~~ time as shall be consented to in ~~all material respects on and as of~~ writing by the ~~Closing Date,~~ Representatives. (iib) 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 and remains effective, no stop No order suspending the effectiveness of the Registration ~~Statement has been issued~~ Statement, as amended from time to time, shall be in effect and no proceedings for ~~that~~ such purpose ~~have been instituted~~ shall be pending before or ~~are~~ threatened by the ~~Commission,~~ Commission and any requests for additional information on the part of the Commission (~~iv) since the Time of Sale, there has been no material adverse change~~ to be included in the ~~condition (financial~~ Registration Statement or the Final Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto)Representatives. (c) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been any change or decrease specified in the letter referred to in paragraph (h) of this Section 6 which, in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the offering and delivery of the Depositary Shares representing such Shares as contemplated by the Registration Statement and the Final Prospectus. (d) The ~~Representatives~~ Company shall have ~~received an~~ furnished to the Representatives the opinion of a Deputy General Counsel or the ~~general counsel, deputy general counsel, chief counsel~~ Chief Legal Officer for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the ~~Representatives)~~Company, dated the ~~Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel,~~ day of each Delivery Date to the effect that: (i) ~~Capital One Bank (USA), National Association~~ The Company has been duly organized and is ~~a national banking association~~ validly existing and in good standing under the laws of the ~~United States,~~ jurisdiction of its incorporation with all requisite corporate power and ~~the Bank has, in all material respects, the power~~ authority to own ~~its assets~~ and operate its properties and to conduct its business as described in the ~~Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables~~Final Prospectus. (ii) The ~~Seller has~~ Deposit Agreement, the ~~power~~ Shares, the Depositary Shares and the Depositary Receipts conform in all material respects to ~~execute and deliver each of~~ the ~~Program Agreements to which it is a party, and to consummate~~ descriptions thereof contained in the ~~transactions set forth herein and therein~~Final Prospectus. (iii) ~~Each~~ The Company has an authorized capitalization as set forth in the Final Prospectus, and all of the ~~Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part~~ issued shares of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party has been duly authorized by all necessary limited liability company action on the part capital stock of the Company ~~and has~~ (including the Shares being delivered on such Delivery Date) have been duly ~~executed~~ and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the Depositary Shares representing the Shares delivered on such Delivery Date have been duly and validly authorized by the ~~Company~~ Company; and ~~when~~ assuming the ~~Collateral Certificate has been authenticated~~ due execution by the Depositary of the Deposit Agreement and ~~delivered~~ the due execution by the Depositary and, if required by the Deposit Agreement, the Registrar of the Depositary Receipts in accordance with the terms of the ~~Pooling~~ Deposit Agreement and ~~Servicing~~ upon the deposit by or on behalf of the Underwriters of the Shares with the Depositary pursuant to the Deposit Agreement, such Depositary Shares will represent legal and valid interests in the ~~Collateral Certificate~~ Shares delivered on such Delivery Date and the Depositary Receipts will ~~be duly and validly issued and outstanding~~ constitute valid evidence of such interests in such Shares and will be entitled to the benefits of the ~~Pooling and Servicing~~ Deposit Agreement. (iv) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any Shares pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel; (v) No consent, approval, authorization or order ~~of,~~ of any court or ~~filing with, any United States~~ governmental agency or ~~authority or any United States federal court~~ body is required ~~on the part of the Seller under United States federal law~~ for the consummation of the transactions ~~set forth~~ contemplated in this Agreement or the ~~Program Agreements to which it is a party~~compliance by the Company with the provisions of the Deposit Agreement, except for such consents, approvals, authorizations or orders as have been obtained ~~or made~~ under the Securities Act and such as may be required under ~~state securities or Blue Sky~~ the Exchange Act and the blue sky laws ~~except for such filings as may be required to perfect~~ of any jurisdiction in connection with the ~~security interest in~~ purchase and distribution of the ~~Receivables pursuant to~~ Shares and the ~~Receivables Purchase Agreement or~~ Depositary Shares by the ~~Pooling and Servicing Agreement~~Underwriters. (vi) ~~No consent, approval, authorization~~ Such counsel does not know of any contracts or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to other documents which ~~it is a party, 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~~ are required to ~~perfect the security interest in the Receivables pursuant~~ be filed as exhibits to the ~~Pooling and Servicing Agreement~~ Registration Statement by the Securities Act or by the ~~Collateral pursuant~~ Rules which have not been filed as exhibits to the ~~Indenture~~Registration Statement or incorporated therein by reference as permitted by the Rules. (vii) ~~Neither~~ To the ~~execution and delivery by each~~ best of such counsel's knowledge, neither the ~~Seller and the Company, as applicable,~~ Company nor any of ~~the Program Agreements to which it~~ its Named Subsidiaries is ~~a party~~in violation of its corporate charter or by-laws, or in default under any material agreement, indenture or instrument known to such counsel, the ~~performance by each~~ effect of ~~the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral~~ which violation or default would be material to the Company or and its subsidiaries taken as a whole. (viii) This Agreement and the ~~transfer~~ Deposit Agreement have been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement and the Deposit Agreement by the Company will not constitute a breach of, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the ~~Receivables and~~ assets of the Company or any of its ~~interest in any related Funds Collateral~~ Named Subsidiaries pursuant to the ~~Issuer~~terms of, or constitute a default under, any material agreement, indenture or instrument known to such counsel and to which the Company or any of its Named Subsidiaries is a party of is bound, or result in a ~~material~~ violation of the corporate charter or by-laws of the Company or any of ~~the terms of (i) the applicable organizational documents of the Bank~~ its Named Subsidiaries or ~~the Company~~any order, ~~each as amended,~~ rule or ~~(ii) any rule, order (~~regulation known to ~~us), statute or regulation, to the extent the foregoing relate to United States federal law,~~ such counsel of any ~~United States court, regulatory body, or administrative~~ court or governmental agency having jurisdiction over the ~~Seller or the~~ Company, ~~as applicable, or result in a material breach of~~ any of ~~the terms of~~ its Named Subsidiaries or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability oftheir respective properties, the ~~Program Agreements, or (C) seeking adversely~~ effect of which would be material to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller in accordance with its ~~terms~~subsidiaries taken as a whole. (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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 3 contracts

Sources: Underwriting Agreement (Lehman Brothers Holdings Inc), Underwriting Agreement (Lehman Brothers Holdings Inc), Underwriting Agreement (Lehman Brothers Holdings Capital Trust Iii)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus, the Prospectus and all other Time of Sale Information shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus as of the Time of Sale, and ~~their~~ to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the ~~Receivables~~ Preliminary Prospectus and the ~~Collateral Certificate~~ Prospectus with respect to each such party with the requirements of Regulation AB and ~~certain other matters relating~~ that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to ~~any applicable credit enhancement~~state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With respect to certain Virginia tax consequences relating~~ The Underwriters shall have received from Sidley Austin LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the ~~issuance of the Notes~~Underwriters. (~~iii~~k) To The Underwriters shall have received from the ~~effect~~ Accountants, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (l) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Term Sheet (or such other FWP) by the rating agency or agencies indicated therein. (m) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (n) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (o) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (p) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (q) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (r) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 3 contracts

Sources: Underwriting Agreement (COMM 2016-Cor1 Mortgage Trust), Underwriting Agreement (DBJPM 2016-C3 Mortgage Trust), Underwriting Agreement (DBJPM 2016-C1 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the Company, the Issuer and the Seller herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company, the Issuer and the Seller made pursuant to the provisions thereof, to the performance by the Company, the Issuer and the Seller in all material respects of their obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to the Company, a certificate, dated the Closing Date, of an authorized officer of the Company in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared ~~and remains~~ effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general ~~counsel, chief~~ counsel ~~for transactions,~~ or ~~senior~~ associate general counsel of Capital One Bank (USA), National ~~Association,~~ Association or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the ~~Disclosure Materials~~Preliminary Prospectus and the Prospectus, and the Bank had at all relevant times and now has, the power 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 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 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 Preliminary Prospectus and the Prospectus. (iii) The Seller has the power to execute and deliver ~~each of~~ the ~~Program Agreements to which it is a party~~Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and to consummate the transactions set forth herein and therein. (~~iii~~iv) The Company has the limited liability company power to execute and deliver the Receivables Purchase Agreement, 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 set forth herein and therein. (v) Each of this Agreement, the ~~Program Agreements to which~~ applicable Terms Agreement, the ~~Seller is a party~~ Pooling and Servicing Agreement and the Receivables Purchase Agreement has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (ivvi) Each of this Agreement, the ~~Program Agreements to which~~ applicable Terms Agreement, the ~~Company is a party~~ Pooling and Servicing Agreement, the Receivables Purchase Agreement, 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. (vvii) No consent, approval, authorization or order of, or filing with, any ~~United States~~ Virginia governmental agency or authority or any ~~United States federal~~ Virginia court is required on the part of the Seller under ~~United States federal~~ applicable Virginia law for the consummation by the Seller of the transactions set forth in this Agreement, the ~~Program Agreements to which it is a party~~applicable Terms Agreement, the Receivables Purchase Agreement or the Pooling and Servicing Agreement, 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 Agreement or the Pooling and Servicing Agreement. (viviii) No consent, approval, authorization or order of, or filing with, any ~~United States~~ Virginia governmental agency or authority or any ~~United States federal~~ Virginia court is required on the part of the Company under ~~United States federal~~ applicable Virginia limited liability company or Virginia law for the consummation by the Company of the transactions set forth in this Agreement, the ~~Program Agreements to which it is a party~~applicable Terms Agreement, the Receivables Purchase Agreement, 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. (~~vii~~ix) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement or the Pooling and Servicing Agreement, 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 Agreement or the Pooling and Servicing Agreement. (x) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement, 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 and delivery by each of the Seller and the ~~Company, as applicable,~~ Company of the ~~Program~~ Agreements to which it is a ~~party,~~ party or the performance by each of the Seller and the Company of its obligations ~~thereunder~~under the Agreements to which it is a party, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to Virginia limited liability company or other ▇▇▇▇▇▇▇▇ ▇▇▇▇ or United States federal law, of any Virginia or United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (~~viii~~xii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of this Agreement, the ~~Program Agreements~~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 or the consummation of any of the transactions set forth by this Agreement, the ~~Program Agreements~~applicable Terms Agreement, the 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 ~~Program Agreements~~applicable Terms Agreement, the 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 Preliminary Prospectus or the Prospectus under the headings ~~“Prospectus~~ “ Summary of Terms – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion ~~or opinions~~ of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ~~and~~ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing ~~Agreement, the Asset Representations Review Agreement, the Transfer~~ Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture ~~Act~~Act of 1939, as amended, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the ~~Asset Representations Review Agreement, the~~ Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the ~~Preliminary Prospectus~~ Registration Statement, in the form in which it became effective, and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the ~~headings~~ heading “Federal Income Tax Consequences” and the summary thereof under the heading “ ~~Prospectus~~ Summary of Terms – Federal Income Tax ~~Consequences”~~ Consequences “ (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary ~~Prospectus, the Ratings Issuer Free Writing~~ Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement (excluding any exhibits filed therewith), at 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 Preliminary ~~Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus,~~ Prospectus as of the Time of ~~Sale,~~ Sale contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the ~~Prospectus, when taken together with the Ratings Issuer Free Writing~~ Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 ~~this paragraph~~ such opinion with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary ~~Prospectus, when taken together with the Ratings Issuer Free Writing~~ Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus). In rendering such ~~opinion,~~ 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia t

Appears in 3 contracts

Sources: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Master Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the Offered Notes ~~will~~ shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller herein as of the date hereof and the Closing Date~~Company contained in this Agreement, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional conditions ~~precedent~~applicable to the Note Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted, ~~with respect~~ or to the knowledge of the Company, threatened by the Commission. (b) The Company shall have furnished to the Representatives a ~~certificate~~certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of ~~an authorized officer of~~ such certificate has carefully examined the Transaction Documents to which the Company ~~in which such officer~~is a party, and that, to the best of ~~his or her~~ such person’s knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of the Company in this Agreement and the Transaction Documents to which the Company is a party are true and correct in all material ~~respects on~~ respects, and ~~as of the Closing Date, (ii)~~ the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date. (c) The Representatives shall have received on the Closing Date a signed opinion of M▇▇▇▇ ▇▇▇▇▇ LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware; Holding is a corporation validly existing and in good standing under the laws of the State of Delaware; PLTHL is a limited liability company validly existing and in good standing under the laws of the State of Delaware; and each of the Company, PLTHL and Holding has full power and authority to enter into and perform its obligations under this Agreement and the Transaction Documents and to consummate the transactions contemplated hereby and thereby; (ii) the execution and delivery by each of the Bank, GECC, PLTHL, Holding, the Issuer and the Company (each, a “Specified Entity”) of this Agreement (if applicable) and the Transaction Documents to which it is a party, and the consummation by each of the transactions contemplated thereby, will not violate any applicable law, statute or governmental rule or regulation; (iii) the execution and delivery by each Specified Entity of this Agreement (if applicable) and the Transaction Documents to which it is a party does not, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of this opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (iv) the execution and delivery by each of the Company and Holding of this Agreement and the Transaction Documents to which it is a party do not, and the consummation by the Company of the transactions contemplated thereby to occur on the date of this opinion will not, violate or contravene any term or provision of the Certificate of Formation or the Limited Liability Company Agreement of the Company or the Certificate of Incorporation or By-Laws of Holding; (v) each of the Transaction Documents (other than the Trust Agreement) constitutes a legal, valid and binding obligation of each of GECC, the Issuer, the Company, PLTHL and Holding that is a party thereto, enforceable against each such party in accordance with its terms; (vi) each of the Notes is in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified herein or in the Note Purchase Agreement, as applicable, it will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture; (vii) the Issuer is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, required to be registered under the Investment Company Act of 1940, as amended; (viii) the Registration Statement became effective under the Act not more than three years prior to the Closing Date, ~~(iii)~~ and the ~~Registration Statement~~ Prospectus has been ~~declared~~ filed with the Commission pursuant to Rule 424(b) thereunder in the manner and ~~remains effective~~within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~has been issued~~ and the Prospectus and no proceedings for that purpose have been ~~instituted or are threatened by~~ instituted; (ix) the ~~Commission, and (iv) since the Time of Sale, there has been no material adverse change~~ statements in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Base Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~The Trust—Perfection and Priority of Security Interests” and “~~Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇~~ —Conservatorship and ~~▇▇▇▇▇▇ LLP, special counsel for the Company~~ Receivership; Bankruptcy,” and “ERISA Considerations” and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the ~~Preliminary~~ Prospectus ~~and the Prospectus~~ Supplement under the ~~headings~~ heading “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus under the headings “Certain Legal Aspects of the Receivables” and “Benefit Plan Investors,Structural Summary—ERISA Considerations” 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. (viii) 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. (ix) 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.; (x) In the ~~event~~ Transaction Documents and the ~~Federal Deposit Insurance Corporation were~~ Notes conform in all material respects to ~~be appointed~~ the descriptions thereof contained in the Prospectus; (xi) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as ~~conservator or receiver for~~ amended and complies as to form with the ~~Bank pursuant to Section 11(c)~~ Trust Indenture Act of 1939 and the rules and regulations of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration Commission thereunder; and (xii) each of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, as of its Effective Date, and the ~~Preliminary~~ Prospectus, as of its date, complied as to form in all material respects with the ~~Ratings Issuer Free Writing Prospectus~~ requirements of the Act and the ~~Prospectus~~ rules and ~~have considered~~ regulations under the ~~matters required~~ Act, except that such counsel need not express any opinion as to ~~be stated~~ the financial and statistical data included therein or excluded therefrom or the exhibits to the Registration Statement and, except as, and to the ~~matters stated therein~~extent set forth in paragraphs (ix) and (x), ~~although they are~~ such counsel need not ~~independently verifying~~ assume any responsibility for the accuracy, completeness or fairness of such statements (except as stated in paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration ~~Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement or the ~~Prospectus or, in the case of the Preliminary~~ Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (ed) The Representatives shall have received ~~an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated~~ on the Closing ~~Date~~Date a signed opinion of D▇▇▇▇▇ ▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~With respect to~~ the ~~perfection~~ Bank is (A) duly organized and validly existing as a Federal savings bank in good standing under the laws of the ~~Company’s interest~~ United States and (B) duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ~~Receivables~~conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the ~~perfection of the Master Trust Trustee’s interest in~~ failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Receivables ~~and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~Sale Agreement; (ii) ~~With respect to certain Virginia tax consequences relating to~~ the ~~issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized~~ Bank has all requisite corporate power and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power authority to execute, deliver and perform its obligations under each of the ~~terms~~ Receivables Sale Agreement and ~~provisions~~ the Receivables Purchase Agreement and to consummate the transactions provided for therein; (iii) the execution, delivery and performance by the Bank of each ~~Program~~ of the Receivables Sale Agreement and the Receivables Purchase Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite corporate action on the part of the Bank; (iv) each of the Receivables Purchase Agreement and the Receivables Sale Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (v) the execution, delivery and performance by the Bank of each of the Receivables Purchase Agreement and the Receivables Sale Agreement and the consummation by the Bank of the transactions provided for therein, do not and will not (A) contravene, violate or constitute a default under any provision of the certificate of incorporation or By-laws of the Bank, (B) to the best of such counsel’s knowledge, contravene or violate any judgment, injunction, order or decree, to which the Bank or its property is subject, (C) to the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement and the Receivables Sale Agreement or (D) contravene violate, conflict with or constitute a default under any agreement, lease, indenture, trust, deed, mortgage, or other instrument of which such counsel is aware to which the Bank is a party or by which the Bank is bound. (e) The Representatives shall have received on the Closing Date a signed opinion of D▇▇▇▇▇ ▇▇, Vice President and Counsel, Capital Markets for GE Capital, Retail Finance, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives to the effect that: (i) GECC is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement in the various capacities set forth therein; (ii) the execution, delivery and performance by GECC of the Servicing Agreement, the Administration Agreement and the Contribution Agreement and the consummation by GECC of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of GECC; (iii) the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement have been duly and validly executed and delivered by GECC; and (iv) the execution and delivery by GECC of the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement to which it is a ~~party~~party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or By-laws of GECC, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which GECC is a party or by which GECC is bound, or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over GECC. (f) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel for the Owner Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Owner Trustee is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware; (ii) the Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and as trustee under the Administration Agreement, and to consummate the transactions contemplated thereby; (iii) the Owner Trustee has duly authorized, executed and delivered the Trust Agreement and the Administration Agreement, as trustee, and the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms; and (iv) neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee contemplated thereby, (A) is in violation of the charter or bylaws of the Owner Trustee or of any law, governmental rule or regulation of the State of Delaware or of the federal laws of the United States governing the trust powers of the Owner Trustee and (B) 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 under the laws of the State of Delaware or the federal laws of the United States governing the trust powers of the Owner Trustee. (g) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Issuer, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Issuer has been duly formed and is validly existing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq., and has the power and authority under the Trust Agreement and the Delaware Statutory Trust Act to execute, deliver and perform its obligations under the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, dated as of September 25, 2003, among the Indenture Trustee, the Issuer, and the Custodian (the “Custody and Control Agreement”) and the Transfer Agreement; (ii) the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, the Transfer Agreement, the Notes to be issued by the Issuer on the Closing Date, and the Certificates have been duly authorized and executed by the Issuer; (iii) the Trust Agreement is a legal, valid and binding obligation of the Company and the Owner Trustee, enforceable against the Company and the Owner Trustee, in accordance with its terms; (iv) neither the execution, delivery or performance by the Issuer of the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement or the Transfer Agreement, nor the consummation by the Issuer of any of the transactions contemplated thereby, (A) 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 Secretary of State, or (B) is in violation of the Trust Agreement or of any law, rule or regulation of the State of Delaware applicable to the Issuer; (v) To under § 3805 (b) and (c) of the ~~effect that~~ Delaware Statutory Trust Act, (A) no ~~consent, approval or authorization~~ creditor of any Certificateholder shall have any right to obtain possession of, or ~~filing with~~otherwise exercise legal or equitable remedies with respect to, ~~any Virginia governmental agency or authority or any Virginia court is required on~~ the ~~part~~ property of the ~~Seller~~ Issuer except in accordance with the terms of the Trust Agreement, and (B) except to the extent otherwise provided in the Trust Agreement, a Certificateholder (including the Company in its capacity as such) has no interest in specific Issuer property; (vi) under ~~applicable Virginia~~ the Delaware Statutory Trust Act, the Issuer is a separate legal entity and, assuming that the Transfer Agreement conveys good title to the Issuer Estate (as defined in the Trust Agreement) to the Issuer as a true sale and not as a security arrangement, the Issuer rather than the Certificateholders will hold whatever title to the Issuer property as may be conveyed to it from time to time pursuant to the Transfer Agreement, e

Appears in 3 contracts

Appears in 2 contracts

Sources: Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or cause to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or cause to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from [_____], certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (UBS Commercial Mortgage Securitization Corp.), Underwriting Agreement (UBS Commercial Mortgage Securitization Corp.)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of an the authorized officer of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or cause to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or cause to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller~~ Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (f) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement and the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from KPMG LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein and such ratings shall not have been withdrawn, suspended or qualified. Each letter assigning such ratings as of the Closing Date shall be addressed to the Company. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and the Company, and counsel for the Underwriters and the Company, and the Underwriters, the Company is and such counsel shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a ~~limited liability company duly organized and~~ prospective change, in ~~existence under~~ or affecting the ~~laws~~ business or properties of ~~Virginia~~ the Company or a Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Offered Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (UBS-Barclays Commercial Mortgage Trust 2013-C5), Underwriting Agreement (UBS-Barclays Commercial Mortgage Trust 2012-C4)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from KPMG LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (COMM 2015-Ccre23 Mortgage Trust), Underwriting Agreement (COMM 2015-Dc1 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ hereunder shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received,~~ been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission. (b) The Company shall have delivered to ~~the Company,~~ you a certificate, dated the Closing Date, of ~~an authorized officer~~ any president or vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined this Agreement, ~~shall state that~~ the Free Writing Prospectus and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company's knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer~~ Free Writing Prospectus ~~(excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or Prospectus contains any untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has~~ c) A good standing certificate regarding the Company from the Secretary of State of the State of Delaware, dated not ~~been requested to and does not make any comment in this paragraph with respect~~ earlier than 30 days prior to the ~~financial statements~~Closing Date; (d) An officer's certificate, ~~supporting schedules~~ dated the Closing Date and ~~other financial~~ signed by the secretary or ~~statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ an assistant secretary of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer's certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received from Cadwalader, Wickersham & Taft LLP, counsel for ▇▇▇ ▇▇▇▇▇▇y, ▇ ▇▇vorable opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (f) The Underwriters shall have received from in-house counsel for the Company, a favorable opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (a) may express counsel's reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement and the Pooling and Servicing Agreement and (b) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from counsel of the Master Servicer, the Special Servicer and the Trustee a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and that such disclosure does not contain an untrue statement of any material fact or ~~opinions~~ omit to state a material fact necessary in order to make the statements therein (in the case of ~~McGuireWoods~~ any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. (h) The Underwriters shall have received from Cadwalader, Wickersham & Taft LLP, ~~Virginia~~ counsel for ▇▇▇ ▇▇▇▇▇▇rit▇▇▇, a favorable opinion, dated the Closing Date and satisfactory in form and substance to the ~~Seller~~ Underwriters. (i) The Underwriters shall have received from KPMG LLP, certified public accountants, a letter dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters stating in effect that using the assumptions and methodology used by the Company, all of which shall be described in such letter, they have recalculated such numbers and percentages set forth in the Preliminary FWP, the First Bloomberg and the ~~Company~~Prospectus as the Underwriters may reasonably request and as are agreed to by KPMG LLP, compared the results of their calculations to the corresponding items in the Preliminary FWP, the First Bloomberg and the Prospectus, and found each such number and percentage set forth in the Preliminary FWP, the First Bloomberg and the Prospectus to be in agreement with the results of such calculations. (j) The Underwriters shall have received from counsel for each Mortgage Loan Seller a favorable opinion, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to counsel for the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iik) ~~With respect to certain Virginia tax consequences relating~~ All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the ~~issuance of~~ Underwriters and counsel for the ~~Notes~~Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, opinions, certificates and documents as they may reasonably request. (~~iii~~l) To Subsequent to the ~~effect that~~ date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the ~~Company is~~ business or properties of the Depositor or a ~~limited liability company duly organized and~~ Mortgage Loan Seller (including any of the Mortgage Loans) which such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Certificates as contemplated by the Time of Sale Information (excluding the Corrective Information) and the ~~Company has~~Prospectus. (m) At the Closing Date, the respective classes of Offered Certificates shall continue to have maintained ratings no lower than those set forth in Schedule I hereto by the nationally recognized statistical rating organizations identified in Schedule I hereto (individually and collectively, the "Rating Agency"). If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C3), Underwriting Agreement (COBALT CMBS Commercial Mortgage Trust 2007-C2)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters ~~to purchase and pay for the Notes will~~ hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and ~~the Closing~~ each Delivery Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the ~~statements of the Company, the Issuer and the Seller made~~ Representative(s) or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“Underwriters’ Counsel”) pursuant to ~~the provisions thereof~~this Section 6, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its respective obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The ~~Representatives~~ Final Prospectus shall have ~~received~~been filed with the Commission pursuant to Rule 424 not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement or such later date and time as shall be consented to in writing by the Representative(s). (b) No order suspending the effectiveness of the Registration Statement, as amended from time to time, shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Final Prospectus or otherwise) shall have been complied with ~~respect~~ to the reasonable satisfaction of the Representative(s). (c) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been any change or decrease specified in the letter referred to in paragraph (g) of this Section 6 which, in the judgment of the Representative(s), makes it impracticable or inadvisable to proceed with the offering and delivery of the Depositary Shares representing such Shares as contemplated by the Registration Statement and the Final Prospectus. (d) The Company shall have furnished to the Representatives the opinion of the Chief Legal Officer, General Counsel or an Associate General Counsel for the Company, dated the day of each Delivery Date to the effect that: (i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the jurisdiction of its incorporation and has full corporate power and authority to own and operate its properties and to conduct its business as described in the Final Prospectus. (ii) The Deposit Agreement, the Shares, the Depositary Shares and the Depositary Receipts conform in all material respects to the descriptions thereof contained in the Final Prospectus. (iii) The Company has an authorized capitalization as set forth in the Final Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered on such Delivery Date) have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the Depositary Shares representing the Shares delivered on such Delivery Date have been duly and validly authorized by the Company; and assuming the due execution by the Depositary of the Deposit Agreement and the due execution y the Depositary and, if required by the Deposit Agreement, the Registrar of the Depositary Receipts in accordance with the terms of the Deposit Agreement and upon the deposit by or on behalf of the Underwriters of the Shares with the Depositary pursuant to the Deposit Agreement, such Depositary Shares will represent legal and valid interests in the Shares delivered on such Delivery Date and the Depositary Receipts will constitute valid evidence of such interests in such Shares and will be entitled to the benefits of the Deposit Agreement. (iv) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any Shares pursuant to the Company’s charter or by-laws or any agreement or other instrument known to such counsel. (v) No consent, approval, authorization, order, registration or qualification of any court or governmental agency or body is required for the consummation of the transactions contemplated in this Agreement or the compliance by the Company with the provisions of the Deposit Agreement, except for such consents, approvals, authorizations, orders, registrations or qualifications as have been obtained under the Securities Act and such as may be required under the Exchange Act under state securities and Blue Sky laws of any jurisdiction in connection with the purchase and distribution of the Shares and the Depositary Shares by the Underwriters. (vi) Such counsel does not know of any contracts or other documents that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules. (vii) To such counsel’s knowledge, neither the Company nor any Significant Subsidiary that is organized under the laws of the United States or any State or territory thereof (a ~~certificate~~“Domestic Significant Subsidiary”) is in violation of its organizational documents, ~~dated~~ or in default under any material agreement, indenture or instrument known to such counsel, the ~~Closing Date~~effect of which violation or default would be material to the Company and its subsidiaries taken as a whole. (viii) This Agreement and the Deposit Agreement have been duly authorized, executed and delivered by the Company; the execution, delivery and performance of ~~an authorized officer~~ this Agreement and the Deposit Agreement by the Company will not conflict with, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the assets of the Company or any Domestic Significant Subsidiary pursuant to the terms of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel and to which the Company or any Domestic Significant Subsidiary is a party or is bound, or result in a violation of the corporate charter or by-laws of the Company or any Domestic Significant Subsidiary or any statute, rule, regulation or any order known to such counsel of any court or governmental agency having jurisdiction over the Company, any Domestic Significant Subsidiary or any of their respective properties, the effect of which ~~such officer~~would be material to the Company and its subsidiaries taken as a whole. (ix) Assuming due authorization, execution and delivery by the Depositary, the Deposit Agreement constitutes a valid and binding agreement, enforceable in accordance with its terms subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing. (x) The Registration Statement has become effective under the Securities Act, and, to the best of ~~his or her~~ the 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 and remains effectivesuch counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no ~~proceedings~~ proceeding for that purpose ~~have~~ has been instituted or ~~are~~ threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (bxi) The ~~Representatives shall have received~~Registration Statement, ~~with respect~~ the Final Prospectus and each amendment thereof or supplement thereto (except that no opinion need be expressed as to the ~~Seller, a certificate, dated~~ financial statements or other financial or statistical data or the ~~Closing Date, of an authorized officer~~ Form T-1 of the ~~Seller in which such officer,~~ Trustee under the Trust Indenture Act included or incorporated by reference therein) comply as to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied form in all material respects with ~~all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before~~ the ~~Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ requirements of the ~~Seller’s credit card business, except as set forth in or contemplated in~~ Securities Act and the ~~Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto)~~Rules. (cxii) ~~The Representatives shall have received an opinion~~ If the Shares or the Depositary Shares, as the case may be, are to be listed on the NYSE, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Shares or the Depositary Shares, as the case may be, with the NYSE, and such counsel has no reason to believe that the Shares or the Depositary Shares, as the case may be, will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution. (xiii) Each Domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the law of the ~~general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel~~ jurisdiction of ~~Capital One Bank (USA), National Association, or~~ its incorporation and each such ~~other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable~~ subsidiary has the corporate power and authority to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate conduct its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Final Prospectus. Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the ~~Seller under~~ Domestic Significant Subsidiaries is duly qualified to do business as a foreign corporation, is in good standing and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the ~~laws~~ case may be, in each jurisdiction in which the nature of the ~~State~~ business conducted by it or in which the ownership or holding by lease of ~~New York~~the properties owned or held by it require such qualification or registration and where the failure to so qualify or register would have a Material Adverse Effect. (xiv) All the outstanding shares of capital stock of each Domestic Significant Subsidiary have been duly and validly authorized and issued and are fully paid and non-assessable and, ~~enforceable~~ except for directors’ qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests. (xv) Such counsel does not know of any legal or governmental proceeding pending or threatened against the Company ~~and~~ or any of its subsidiaries which would affect the ~~Seller in accordance with its terms. (ii) The sale and delivery~~ subject matter of this Agreement or the ~~Notes~~ Deposit Agreement or is required to be described in the ~~manner contemplated by this Agreement~~ Final Prospectus which is not described and the Pooling and Servicing Agreement do not require (A) the qualification of the Pooling and Servicing Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreementcorrectly summarized therein. Such counsel shall also ~~state~~ have furnished a statement that ~~they have participated in conferences with representatives of the Seller, the Company~~ although such counsel is not passing upon and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus and the Prospectus and have considered the matters required to be stated therein and the matters stated therein, although they are does not ~~independently verifying~~ assume any responsibility for the accuracy, completeness or fairness of ~~such~~ the statements contained in the Registration Statement and the Final Prospectus (except as to those matters stated in ~~paragraphs~~ paragraph (viii) ~~and (vii) above~~of such opinion)~~. Based upon and subject to the foregoing~~, ~~nothing has come to such counsel’s attention to cause~~ such counsel has no reason to believe that (i) the Registration Statement, ~~when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective~~as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading,~~ misleading or ~~that~~ (ii) the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or Final Prospectus contains any untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~it being understood~~ except that ~~such counsel has not been requested to and does not make any comment in this paragraph with respect~~ no statement need be made as to the financial ~~statements, supporting schedules and~~ statements or other financial or statistical ~~information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus~~ data or the ~~Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus~~Form T-1 included or incorporated by reference therein). In rendering such ~~opinion~~opinion and statement, such counsel may (xrely upon opinions of local counsel satisfactory to the Representative(s) ~~as to~~ for matters ~~involving the application of laws other than the laws of any jurisdiction other than~~ not governed by New York law and ~~the United States of America, assume the conformity of such laws with the laws of New York and (y)~~ may rely as to matters of fact, to the extent ~~deemed proper and as stated therein~~such counsel deems proper, on upon certificates or affidavits of ~~responsible~~ officers of ~~the Seller and~~ the Company and public ~~officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto)~~officials. (e) The ~~Representatives~~ Representative(s) shall have received an from Underwriters’ Counsel such opinion or ~~opinions~~ opinions, dated the day of ~~McGuireWoods LLP~~such Delivery Date, ~~Virginia counsel~~ with respect to the ~~Seller~~ issuance and sale of the Shares and the ~~Company~~Depositary Shares, the Depositary Agreement, the Registration Statement, the Final Prospectus and other related matters as the Representative(s) may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (f) The Company shall have furnished to the Representative(s) a certificate of its Chief Executive Officer, its President, Chief Operating Officer, Chief Administrative Officer, any Executive Vice President, Senior Vice President or Vice President, and its Chief Financial Officer, its Treasurer, its Financial Controller or its Global Head of Asset Liability Management (or other officer performing substantially the same function), dated the day of the Closing Date, ~~in form and substance reasonably satisfactory~~ to the ~~Representatives~~ effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus and this Agreement, and that, to the best of their ~~counsel~~knowledge after due inquiry: (i) ~~With respect to the perfection~~ The representations and warranties of the ~~Company’s interest~~ Company in this Agreement are true and correct in all material respects on and as of such Delivery Date with the ~~Receivables~~same effect as if made on such Delivery Date, ~~the perfection of the Master Trust Trustee’s interest in the Receivables~~ and the ~~Collateral Certificate~~ Company has complied with all the agreements and ~~certain other matters relating~~ satisfied all the conditions on its part to ~~any applicable credit enhancement~~be performed or satisfied at or prior to such Delivery Date. (ii) ~~With respect to certain Virginia tax consequences relating to~~ No stop order suspending the ~~issuance~~ effectiveness of the ~~Notes~~Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened. (iii) To (x) The Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the ~~effect~~ statements therein not misleading, (y) the Final Prospectus does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (z) since the effective date of the Registration Statement there has not occurred any event required to be set forth in an amended or supplemented prospectus which has not been so set forth. (g) At each Delivery Date, a nationally recognized independent registered public accounting firm shall have furnished to the Representatives a letter, dated the day of such Delivery Date, confirming that they are independent auditors with respect to the Company ~~is a limited liability company duly organized~~ within the meaning of the Securities Act and in ~~existence under~~ form and substance satisfactory to the ~~laws~~ Representatives, stating in effect that: (i) In their opinion, the consolidated financial statements of ~~Virginia~~ the Company and its subsidiaries, and the ~~Company has~~supporting schedules, included in the Registration Statement and the Final Prospectus and audited by them comply as to form in all material ~~respects,~~ respects with the ~~limited liability company power to own its assets~~ applicable accounting requirements of the Securities Act and ~~operate its business as described in~~ the ~~Disclosure Materials,~~ Exchange Act and ~~had at all relevant times,~~ the related published rules and now has, the limited liability company power 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 Disclosure Materialsregulations thereunder. (ivii) To On the ~~effect that~~ basis of a reading of the unaudited consolidated financial statements of the Company ~~had at all relevant time~~and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus and of the latest unaudited consolidated financial statements made available by the Company and ▇▇▇▇▇▇ Brothers Inc., carrying out certain specified procedures (but not an audit in accordance with generally accepted auditing standards), a reading of the minutes of the meetings of the directors of the Company and ▇▇▇▇▇▇ Brothers Inc., and ~~now has~~inquiries of certain officials of the Company and its subsidiaries, who have responsibility for financial and accounting matters of the ~~limited liability company power~~ Company and its subsidiaries, as to ~~execute~~transactions and events subsequent to the date of the most recent audited consolidated financial statements included in the Registration Statement and the Final Prospectus, ~~deliver~~ nothing came to their attention that caused them to believe that: (A) any material modifications should be made to the unaudited consolidated financial statements of the Company and ~~perform~~ its subsidiaries, if any, included in the ~~terms~~ Registration Statement and ~~provisions~~ the Final Prospectus for them to be in conformity with generally accepted accounting principles; and such financial statements do not comply as to form in all material respects with the applicable accounting requirements of ~~each Program Agreement to which it is a party~~the Securities Act and the published instructions, rules and regulations thereunder. (vB) To the ~~effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part~~ unaudited capsule information of the ~~Seller under applicable Virginia~~ Company and its subsidiaries, if any, included in the Registration Statement and the Final Prospectus does not agree with the amounts set forth in the unaudited consolidated financial statements of the Company from which it was derived or was not determined on a basis substantially consistent with that of the corresponding financial information in the latest audited financial statements of the Company included in the Registration Statement and the Final Prospectus. (C) (I) as of the latest date as of w

Appears in 2 contracts

Sources: Underwriting Agreement (Lehman Brothers Holdings Inc), Underwriting Agreement (Lehman Brothers Holdings Inc)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or cause to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or cause to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Sidley Austin LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Sidley Austin LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Sidley Austin LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from KPMG LLC, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (COMM 2013-Ccre13 Mortgage Trust), Underwriting Agreement (COMM 2013-Ccre13 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or cause to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or cause to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods LLP~~from Sidley Austin llp, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Sidley Austin llp, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Sidley Austin llp, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from Ernst & Young LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (COMM 2012-Ccre3 Mortgage Trust), Underwriting Agreement (COMM 2012-Ccre3 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the Offered Notes ~~will~~ shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller herein as of the date hereof and the Closing Date~~Company contained in this Agreement, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional conditions ~~precedent~~applicable to the Note Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted, ~~with respect~~ or to the knowledge of the Company, threatened by the Commission. (b) The Company shall have furnished to the Representatives a ~~certificate~~certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of ~~an authorized officer of~~ such certificate has carefully examined the Transaction Documents to which the Company ~~in which such officer~~is a party, and that, to the best of ~~his or her~~ such person’s knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of the Company in this Agreement and the Transaction Documents to which the Company is a party are true and correct in all material ~~respects on~~ respects, and ~~as of the Closing Date, (ii)~~ the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date. (c) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware; Holding is a corporation validly existing and in good standing under the laws of the State of Delaware; and each of the Company and Holding has full power and authority to enter into and perform its obligations under this Agreement and the Transaction Documents and to consummate the transactions contemplated hereby and thereby; (ii) the execution and delivery by each of the Bank, GECC, GECS, Holding, the Issuer and the Company (each, a “Specified Entity”) of this Agreement (if applicable) and the Transaction Documents to which it is a party, and the consummation by each of the transactions contemplated thereby, will not violate any applicable law, statute or governmental rule or regulation; (iii) the execution and delivery by each Specified Entity of this Agreement (if applicable) and the Transaction Documents to which it is a party does not, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of this opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (iv) the execution and delivery by each of the Company and Holding of this Agreement and the Transaction Documents to which it is a party do not, and the consummation by the Company of the transactions contemplated thereby to occur on the date of this opinion will not, violate or contravene any term or provision of the Certificate of Formation or the Limited Liability Company Agreement of the Company or the Certificate of Incorporation or By-Laws of Holding; (v) each of the Transaction Documents (other than the Trust Agreement) constitutes a legal, valid and binding obligation of each of GECC, GECS, the Issuer, the Company and Holding that is a party thereto, enforceable against each such party in accordance with its terms; (vi) each of the Notes is in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified herein or in the Note Purchase Agreement, as applicable, it will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture; (vii) the Issuer is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, required to be registered under the Investment Company Act of 1940, as amended; (viii) the Registration Statement became effective under the Act not more than three years prior to the Closing Date, ~~(iii)~~ and the ~~Registration Statement~~ Prospectus has been ~~declared~~ filed with the Commission pursuant to Rule 424(b) thereunder in the manner and ~~remains effective~~within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~has been issued~~ and the Prospectus and no proceedings for that purpose have been ~~instituted or are threatened by~~ instituted; (ix) the ~~Commission, and (iv) since the Time of Sale, there has been no material adverse change~~ statements in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Base Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~The Trust—Perfection and Priority of Security Interests” and “~~Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇~~ —Conservatorship and ~~▇▇▇▇▇▇ LLP, special counsel for the Company~~ Receivership; Bankruptcy,” and “ERISA Considerations” and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the ~~Preliminary~~ Prospectus ~~and the Prospectus~~ Supplement under the ~~headings~~ heading “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus under the headings “Certain Legal Aspects of the Receivables” and “Benefit Plan Investors,Structural Summary—ERISA Considerations” 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. (viii) 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. (ix) 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.; (x) In the ~~event~~ Transaction Documents and the ~~Federal Deposit Insurance Corporation were~~ Notes conform in all material respects to ~~be appointed~~ the descriptions thereof contained in the Prospectus; (xi) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as ~~conservator or receiver for~~ amended and complies as to form with the ~~Bank pursuant to Section 11(c)~~ Trust Indenture Act of 1939 and the rules and regulations of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration Commission thereunder; and (xii) each of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, as of its Effective Date, and the ~~Preliminary~~ Prospectus, as of its date, complied as to form in all material respects with the ~~Ratings Issuer Free Writing Prospectus~~ requirements of the Act and the ~~Prospectus~~ rules and ~~have considered~~ regulations under the ~~matters required~~ Act, except that such counsel need not express any opinion as to ~~be stated~~ the financial and statistical data included therein or excluded therefrom or the exhibits to the Registration Statement and, except as, and to the ~~matters stated therein~~extent set forth in paragraphs (ix) and (x), ~~although they are~~ such counsel need not ~~independently verifying~~ assume any responsibility for the accuracy, completeness or fairness of such statements (except as stated in paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration ~~Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement or the ~~Prospectus or, in the case of the Preliminary~~ Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (ed) The Representatives shall have received ~~an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated~~ on the Closing ~~Date~~Date a signed opinion of ▇▇▇▇▇▇ ▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~With respect to~~ the ~~perfection~~ Bank is (A) duly organized and validly existing as a Federal savings bank in good standing under the laws of the ~~Company’s interest~~ United States and (B) duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ~~Receivables~~conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the ~~perfection of the Master Trust Trustee’s interest in~~ failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Receivables ~~and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~Sale Agreement; (ii) ~~With respect to certain Virginia tax consequences relating to~~ the ~~issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized~~ Bank has all requisite corporate power and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power authority to execute, deliver and perform its obligations under the ~~terms~~ Receivables Sale Agreement and ~~provisions~~ to consummate the transactions provided for therein; (iii) the execution, delivery and performance by the Bank of the Receivables Sale Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite corporate action on the part of the Bank; (iv) the Receivables Sale Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (v) the execution, delivery and performance by the Bank of the Receivables Sale Agreement and the consummation by the Bank of the transactions provided for therein, do not and will not (A) contravene, violate or constitute a default under any provision of the certificate of incorporation or By-laws of the Bank, (B) to the best of such counsel’s knowledge, contravene or violate any judgment, injunction, order or decree, to which the Bank or its property is subject, (C) to the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement and the Receivables Sale Agreement or (D) contravene violate, conflict with or constitute a default under any agreement, lease, indenture, trust, deed, mortgage, or other instrument of which such counsel is aware to which the Bank is a party or by which the Bank is bound. (e) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇ ▇▇, Vice President and Counsel, Capital Markets for GE Capital, Retail Finance, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives to the effect that: (i) each ~~Program~~ of GECC and GECS is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement to which it is a ~~party~~party in the various capacities set forth therein; (ii) the execution, delivery and performance by each of GECC and GECS of the Servicing Agreement, the Administration Agreement and the Contribution Agreement to which it is a party and the consummation by GECC and GECS of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of GECC and GECS; (iii) the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement to which it is a party have been duly and validly executed and delivered by GECC and GECS; and (iv) the execution and delivery by each of GECC and GECS of the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement to which it is a party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or By-laws of GECC or, with respect to the Assignment Agreement, GECS, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which GECC or, with respect to the Assignment Agreement, GECS is a party or by which GECC or, with respect to the Assignment Agreement, GECS is bound, or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over GECC or, with respect to the Assignment Agreement, GECS. (f) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel for the Owner Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Owner Trustee is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware; (ii) the Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and as trustee under the Administration Agreement, and to consummate the transactions contemplated thereby; (iii) the Owner Trustee has duly authorized, executed and delivered the Trust Agreement and the Administration Agreement, as trustee, and the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms; and (iv) neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee contemplated thereby, (A) is in violation of the charter or bylaws of the Owner Trustee or of any law, governmental rule or regulation of the State of Delaware or of the federal laws of the United States governing the trust powers of the Owner Trustee and (B) 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 under the laws of the State of Delaware or the federal laws of the United States governing the trust powers of the Owner Trustee. (g) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Issuer, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Issuer has been duly formed and is validly existing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq., and has the power and authority under the Trust Agreement and the Delaware Statutory Trust Act to execute, deliver and perform its obligations under the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, dated as of September 25, 2003, among the Indenture Trustee, the Issuer, and the Custodian (the “Custody and Control Agreement”) and the Transfer Agreement; (ii) the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, the Transfer Agreement, the Notes to be issued by the Issuer on the Closing Date, and the Certificates have been duly authorized and executed by the Issuer; (iii) the Trust Agreement is a legal, valid and binding obligation of the Company and the Owner Trustee, enforceable against the Company and the Owner Trustee, in accordance with its terms; (iv) neither the execution, delivery or performance by the Issuer of the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement or the Transfer Agreement, nor the consummation by the Issuer of any of the transactions contemplated thereby, (A) 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 Secretary of State, or (B) is in violation of the Trust Agreement or of any law, rule or regulation of the State of Delaware applicable to the Issuer; (v) To under § 3805 (b) and (c) of the ~~effect that~~ Delaware Statutory Trust Act, (A) no ~~consent, approval or authorization~~ creditor of any Certificateholder shall have any right to obtain possession of, or ~~filing with~~otherwise exercise legal or equitable remedies with respect to, ~~any Virginia governmental agency or authority or any Virginia court is required on~~ the ~~part~~ property of the ~~Seller~~ Issuer except in accordance with the terms of the Trust Agreement, and (B) except to the extent otherwise provided in the Trust Agreement, a Certificateholder (including the Company in its capacity as such) has no interest in specific Issuer property; (vi) under ~~applicable Virginia~~ the Delaware Statutory Trust Act, the Issuer is a separate legal entity and, assuming that the Transfer Agreement conveys good title to the Issuer Estate (as defined in the Trust Agreement) to the Issuer as a true sale and not as a security arrangement, the Issuer rather than the Certificateholders will hold whatever title to the Issuer property as may be conveyed to it from time to time

Appears in 2 contracts

Sources: Underwriting Agreement (GE Capital Credit Card Master Note Trust), Underwriting Agreement (GE Capital Credit Card Master Note Trust)

Appears in 2 contracts

Sources: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Funding, LLC)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus, the Prospectus and all other Time of Sale Information shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Sidley Austin LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Sidley Austin LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus as of the Time of Sale, and ~~their~~ to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the ~~Receivables~~ Preliminary Prospectus and the ~~Collateral Certificate~~ Prospectus with respect to each such party with the requirements of Regulation AB and ~~certain other matters relating~~ that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to ~~any applicable credit enhancement~~state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With respect to certain Virginia tax consequences relating~~ The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the ~~issuance of the Notes~~Underwriters. (~~iii~~k) To The Underwriters shall have received from the ~~effect~~ Accountants, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) letters dated on or prior to the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (l) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Term Sheet (or such other FWP) by the rating agency or agencies indicated therein. (m) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (n) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (o) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (p) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (q) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (r) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (DBGS 2018-C1 Mortgage Trust), Underwriting Agreement (Benchmark 2018-B1 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus, the Prospectus and all other Time of Sale Information shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus as of the Time of Sale, and ~~their~~ to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the ~~Receivables~~ Preliminary Prospectus and the ~~Collateral Certificate~~ Prospectus with respect to each such party with the requirements of Regulation AB and ~~certain other matters relating~~ that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to ~~any applicable credit enhancement~~state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With respect to certain Virginia tax consequences relating~~ The Underwriters shall have received from Sidley Austin LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the ~~issuance of the Notes~~Underwriters. (~~iii~~k) To The Underwriters shall have received from the ~~effect that~~ Accountants, certified public accountants, (i) a copy of the ~~Company is a limited liability company duly organized~~ Accountant’s Due Diligence Report and ~~in existence under~~ (ii) letters dated the ~~laws~~ Time of ~~Virginia~~ Sale and the ~~Company has,~~ Closing Date and satisfactory in ~~all material respects, the limited liability company power to own its assets~~ form and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to be transferred substance to the ~~Issuer as described in~~ Underwriters and counsel for the ~~Disclosure Materials~~Underwriters. (ivl) To The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the ~~effect that~~ Term Sheet (or such other FWP) by the ~~Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party~~rating agency or agencies indicated therein. (vm) To The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the ~~effect~~ Closing Date, that ~~no consent~~is satisfactory in form and substance to counsel for the Underwriters. (n) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, ~~approval or authorization of~~dated the Closing Date, ~~or filing with~~with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, ~~any Virginia governmental agency or authority or any Virginia court is required on~~ which will include an opinion as to the ~~part~~ compliance of the ~~Seller~~ disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under ~~applicable Virginia~~ which they were made, not

Appears in 2 contracts

Sources: Underwriting Agreement (CD 2016-Cd1 Mortgage Trust), Underwriting Agreement (COMM 2016-Ccre28 Mortgage Trust)

Appears in 2 contracts

Sources: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Funding, LLC)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Securities shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the ~~date hereof~~ Time of Sale and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) ~~The Representatives~~ If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have ~~received, with respect~~ been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company’s General Counsel shall have furnished to the ~~Company, a certificate~~Representatives an opinion, dated the Closing ~~Date, of an authorized officer of the Company in which such officer,~~ Date and addressed to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ Representatives to the effect that: (i) the ~~representations~~ Company and ~~warranties~~ each of its Material Subsidiaries has been duly incorporated or organized, as the case may be, and is validly existing as a corporation or limited liability company in good standing (as applicable) under the laws of the ~~Company~~ jurisdiction in ~~this Agreement are true~~ which it is chartered or organized, with corporate or limited liability company power and ~~correct~~ authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation or limited liability company and is in good standing (as applicable) under the laws of each jurisdiction which requires such qualification, or subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; (ii) the Company’s authorized equity capitalization is as set forth in the Prospectus; the Indenture and the Securities conform in all material respects on to the description thereof contained in the Prospectus; (iii) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the ~~Closing Date~~Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (iisubject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law) and entitled to the benefits of the Indenture; (iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in (A) the ~~Company has complied~~ Time of Sale Information under the headings “Description of Debt Securities” and “Description of the Notes”; (B) the Final Prospectus under the headings, “Description of Debt Securities”, “Description of the Notes” and “Underwriting” and (C) the Registration Statement in ~~all material respects with all agreements~~ Item 15, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and ~~satisfied all conditions on its part to be performed~~ fair summaries of such legal matters, agreements, documents or ~~satisfied hereunder at or before the Closing Date,~~ proceedings; (~~iii~~A) the Registration Statement has become effective under the Act; (B) any required filing of the Basic Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been ~~declared~~ made in the manner and ~~remains effective~~within the time period required by Rule 424(b); (C) any required filing of any Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433; (D) to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or ~~are threatened by the Commission~~threatened, and ~~(iv) since~~ the ~~Time of Sale~~Registration Statement, ~~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~~ any Preliminary Prospectus and the Final Prospectus (~~references~~ other than the financial statements and other financial information contained or incorporated by reference therein and the Form T-1, as to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such ~~officer,~~ counsel need express no opinion) comply as to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied form in all material respects with ~~all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before~~ the ~~Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ applicable requirements of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respectsAct, the ~~power to own its assets~~ Exchange Act and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture ~~Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940~~ Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) respective rules thereunder; and (~~vii~~E) ~~above). Based upon and subject to the foregoing,~~ nothing has come to the attention of such ~~counsel’s attention to cause~~ counsel that causes such counsel to believe that (1) on the Effective Date or the date the Registration ~~Statement~~Statement was last deemed amended, ~~when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith),~~ and at the ~~time it became effective~~Execution Time, the Registration Statement 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~~ ; (2) the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, Final Prospectus as of its date or ~~as of~~ on the ~~date of such opinion, contained~~ Closing Date included or ~~contains~~ includes any untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (3) the Time of Sale Information as of the Time of Sale or, as amended or supplemented (if applicable) as of the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the 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 this paragraph~~ with respect to clauses (1) through (3) above, in each case other than the financial ~~statements, supporting schedules~~ statements and other financial ~~or statistical~~ information contained or incorporated by reference therein and the Form T-1, as to which such counsel need express no opinion); (vi) this Agreement has been duly authorized, executed and delivered by the Company; (vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended; (viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under the securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained; (ix) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its Material Subsidiaries pursuant to, (i) the charter or by-laws of the Company or such subsidiaries, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or such subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or such subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiaries or any of its or their properties; (x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement, ; and (xi) the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or~~ statements in the Prospectus orunder the caption “Material United States Federal Income and Estate Tax Considerations”, ~~in the case~~ insofar as such statements constitute a summary of the ~~Preliminary Prospectus~~United States federal tax laws referred to therein, are accurate and fairly summarize in all material respects the ~~omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus)~~U.S. federal tax laws referred to therein. In rendering such opinion, such counsel may rely (xA) as to matters involving the application of laws ~~other than the laws~~ of any jurisdiction other than ~~New York and~~ the State of Delaware or the Federal laws of the United ~~States~~ States, to the extent they deem proper and specified in such opinion, upon the opinion of ~~America, assume~~ other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the ~~conformity of such laws with the laws of New York~~ Underwriters and (yB) ~~rely~~ as to matters of fact, to the extent ~~deemed proper and as stated therein~~they deem proper, on certificates of responsible officers of the ~~Seller and the~~ Company and its subsidiaries and public ~~officials~~ officials. With respect to opinion (~~references~~ iii) above, such opinion may be rendered by ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the ~~Preliminary Prospectus or~~ laws of the State of New York. References to the Final Prospectus in this ~~clause~~ paragraph (b) include any ~~amendments or~~ supplements ~~thereto)~~thereto at the Closing Date. (ec) The Representatives shall have received an from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions of McGuireWoods LLP~~opinions, ~~Virginia counsel~~ dated the Closing Date and addressed to the ~~Seller~~ Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Information, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, ~~in form and substance reasonably satisfactory~~ to the ~~Representatives~~ effect that the signers of such certificate have reviewed the Registration Statement, the Time of Sale Information, the Final Prospectus, any supplements to the Final Prospectus and ~~their counsel~~this Agreement and that: (i) ~~With respect~~ the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.Closing Date; (ii) ~~With respect to certain Virginia tax consequences relating~~ to the ~~issuance~~ knowledge of such officers, no stop order suspending the effectiveness of the ~~Notes.~~Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and (iii) To since the ~~effect~~ date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Prospectus. (e) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, constituting statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters and (i) confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder; (ii) confirming that they have performed a review of the unaudited interim financial information of the Company ~~is a limited liability company duly organized~~ for the period ended on and as at the date of the unaudited financial statements of the Company included or incorporated by reference in ~~existence under~~ the ~~laws~~ Registration Statement, the Time of ~~Virginia~~ Sale Information and Final Prospectus, in accordance with Statement on Auditing Standards No. 100; and (iii) stating in effect, except as provided in Schedule I hereto, that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement, the Time of Sale Information and the ~~Company has,~~ Final Prospectus and reported on by them comply as to form in all material ~~respects~~respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the unaudited financial statements of the Company made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the period ended on and as at the date of the unaudited financial statements of the Company included or incorporated by reference in the Registration Statement, the ~~limited liability company power to own its assets~~ Time of Sale Information and ~~operate its business~~ Final Prospectus, as ~~described~~ indicated in their report which is incorporated by reference in the ~~Disclosure Materials, and had at all relevant times, and now has~~Registration Statement, the ~~limited liability company power~~ Time of Sale Information and the Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to ~~acquire~~ the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and ~~own~~ committees of the ~~Receivables~~ Company and its ~~interest in any Collateral Certificate transferred or proposed~~ subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to ~~be transferred~~ transactions and events subsequent to the ~~Issuer as described~~ date of the most recent unaudited financial statements of the Company included or incorporated by reference in the ~~Disclosure Materials.~~Registration Statement, the Time of Sale Information and the Final Prospectus, nothing came to their attention which caused them to believe that: (iv1) To any unaudited financial statements included or incorporated by reference in the ~~effect~~ Registration Statement, the Time of Sale Information and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q or in reports on Form 8-K under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus, there were any changes, at a specified date not more than three Business Days prior to the date of the letter, in the long-term debt of the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia and

Appears in 2 contracts

Sources: Underwriting Agreement (General Mills Inc), Underwriting Agreement (General Mills Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Shares shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and ~~the Closing~~ each Delivery Date, to the accuracy of any material statements made in any certificates, opinions, affidavits, written statements or letters furnished to the ~~statements of the Company, the Issuer and the Seller made~~ Representatives or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ("Underwriters' Counsel") pursuant to ~~the provisions thereof~~this Section 6, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its respective obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The ~~Representatives~~ Final Prospectus shall have ~~received~~been filed with the Commission pursuant to Rule 424 not later than 10:00 a.m., ~~with respect to~~ New York City time, on the ~~Company, a certificate, dated~~ business day following the ~~Closing Date,~~ 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~~ or such later date and ~~correct~~ time as shall be consented to in ~~all material respects on and as of~~ writing by the ~~Closing Date,~~ Representatives. (iib) 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 and remains effective, no stop No order suspending the effectiveness of the Registration ~~Statement has been issued~~ Statement, as amended from time to time, shall be in effect and no proceedings for ~~that~~ such purpose ~~have been instituted~~ shall be pending before or ~~are~~ threatened by the ~~Commission,~~ Commission and any requests for additional information on the part of the Commission (~~iv) since the Time of Sale, there has been no material adverse change~~ to be included in the ~~condition (financial~~ Registration Statement or the Final Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto)Representatives. (c) Since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there shall not have been any change or decrease specified in the letter referred to in paragraph (g) of this Section 6 which, in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the offering and delivery of the Depositary Shares representing such Shares as contemplated by the Registration Statement and the Final Prospectus. (d) The ~~Representatives~~ Company shall have ~~received an~~ furnished to the Representatives the opinion of a Deputy General Counsel or the ~~general counsel, deputy general counsel, chief counsel~~ Chief Legal Officer for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the ~~Representatives)~~Company, dated the ~~Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel,~~ day of each Delivery Date to the effect that: (i) ~~Capital One Bank (USA), National Association~~ The Company has been duly organized and is ~~a national banking association~~ validly existing and in good standing under the laws of the ~~United States,~~ jurisdiction of its incorporation with all requisite corporate power and ~~the Bank has, in all material respects, the power~~ authority to own ~~its assets~~ and operate its properties and to conduct its business as described in the ~~Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables~~Final Prospectus. (ii) The ~~Seller has~~ Deposit Agreement, the ~~power~~ Shares, the Depositary Shares and the Depositary Receipts conform in all material respects to ~~execute and deliver each of~~ the ~~Program Agreements to which it is a party, and to consummate~~ descriptions thereof contained in the ~~transactions set forth herein and therein~~Final Prospectus. (iii) ~~Each~~ The Company has an authorized capitalization as set forth in the Final Prospectus, and all of the ~~Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part~~ issued shares of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party has been duly authorized by all necessary limited liability company action on the part capital stock of the Company ~~and has~~ (including the Shares being delivered on such Delivery Date) have been duly ~~executed~~ and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; the Depositary Shares representing the Shares delivered on such Delivery Date have been duly and validly authorized by the ~~Company~~ Company; and ~~when~~ assuming the ~~Collateral Certificate has been authenticated~~ due execution by the Depositary of the Deposit Agreement and ~~delivered~~ the due execution by the Depositary and, if required by the Deposit Agreement, the Registrar of the Depositary Receipts in accordance with the terms of the ~~Pooling~~ Deposit Agreement and ~~Servicing~~ upon the deposit by or on behalf of the Underwriters of the Shares with the Depositary pursuant to the Deposit Agreement, such Depositary Shares will represent legal and valid interests in the ~~Collateral Certificate~~ Shares delivered on such Delivery Date and the Depositary Receipts will ~~be duly and validly issued and outstanding~~ constitute valid evidence of such interests in such Shares and will be entitled to the benefits of the ~~Pooling and Servicing~~ Deposit Agreement. (iv) There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any Shares pursuant to the Company's charter or by-laws or any agreement or other instrument known to such counsel. (v) No consent, approval, authorization or order ~~of,~~ of any court or ~~filing with, any United States~~ governmental agency or ~~authority or any United States federal court~~ body is required ~~on the part of the Seller under United States federal law~~ for the consummation of the transactions ~~set forth~~ contemplated in this Agreement or the ~~Program Agreements to which it is a party~~compliance by the Company with the provisions of the Deposit Agreement, except for such consents, approvals, authorizations or orders as have been obtained ~~or made~~ under the Securities Act and such as may be required under ~~state securities or Blue Sky~~ the Exchange Act and the blue sky laws ~~except for such filings as may be required to perfect~~ of any jurisdiction in connection with the ~~security interest in~~ purchase and distribution of the ~~Receivables pursuant to~~ Shares and the ~~Receivables Purchase Agreement or~~ Depositary Shares by the ~~Pooling and Servicing Agreement~~Underwriters. (vi) ~~No consent, approval, authorization~~ Such counsel does not know of any contracts or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to other documents which ~~it is a party, 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~~ are required to ~~perfect the security interest in the Receivables pursuant~~ be filed as exhibits to the ~~Pooling and Servicing Agreement~~ Registration Statement by the Securities Act or by the ~~Collateral pursuant~~ Rules which have not been filed as exhibits to the ~~Indenture~~Registration Statement or incorporated therein by reference as permitted by the Rules. (vii) ~~Neither~~ To the ~~execution and delivery by each~~ best of such counsel's knowledge, neither the ~~Seller and the Company, as applicable,~~ Company nor any of ~~the Program Agreements to which it~~ its Named Subsidiaries is ~~a party~~in violation of its corporate charter or by-laws, or in default under any material agreement, indenture or instrument known to such counsel, the ~~performance by each~~ effect of ~~the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral~~ which violation or default would be material to the Company or and its subsidiaries taken as a whole. (viii) This Agreement and the ~~transfer~~ Deposit Agreement have been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement and the Deposit Agreement by the Company will not constitute a breach of, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the ~~Receivables and~~ assets of the Company or any of its ~~interest in any related Funds Collateral~~ Named Subsidiaries pursuant to the ~~Issuer~~terms of, or constitute a default under, any material agreement, indenture or instrument known to such counsel and to which the Company or any of its Named Subsidiaries is a party of is bound, or result in a ~~material~~ violation of the corporate charter or by-laws of the Company or any of ~~the terms of (i) the applicable organizational documents of the Bank~~ its Named Subsidiaries or ~~the Company~~any order, ~~each as amended,~~ rule or ~~(ii) any rule, order (~~regulation known to ~~us), statute or regulation, to the extent the foregoing relate to United States federal law,~~ such counsel of any ~~United States court, regulatory body, or administrative~~ court or governmental agency having jurisdiction over the ~~Seller or the~~ Company, ~~as applicable, or result in a material breach of~~ any of ~~the terms of~~ its Named Subsidiaries or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability oftheir respective properties, the ~~Program Agreements, or (C) seeking adversely~~ effect of which would be material to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller in accordance with its ~~terms~~subsidiaries taken as a whole. (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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (Lehman Brothers Holdings Capital Trust V), Underwriting Agreement (Lehman Brothers Holdings Capital Trust V)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus, the Prospectus and all other Time of Sale Information shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus as of the Time of Sale, and ~~their~~ to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the ~~Receivables~~ Preliminary Prospectus and the ~~Collateral Certificate~~ Prospectus with respect to each such party with the requirements of Regulation AB and ~~certain other matters relating~~ that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to ~~any applicable credit enhancement~~state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With respect to certain Virginia tax consequences relating~~ The Underwriters shall have received from Sidley Austin LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the ~~issuance of the Notes~~Underwriters. (~~iii~~k) To The Underwriters shall have received from the ~~effect~~ Accountants, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) letters dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (l) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Term Sheet (or such other FWP) by the rating agency or agencies indicated therein. (m) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (n) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (o) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (p) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (q) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (r) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (COMM 2017-Cor2 Mortgage Trust), Underwriting Agreement (DBJPM 2017-C6 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Securities shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the ~~date hereof~~ Time of Sale and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) ~~The Representatives~~ If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have ~~received, with respect~~ been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company’s General Counsel shall have furnished to the ~~Company, a certificate~~Representatives an opinion, dated the Closing ~~Date, of an authorized officer of the Company in which such officer,~~ Date and addressed to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ Representatives to the effect that: (i) the ~~representations~~ Company and ~~warranties~~ each of its Material Subsidiaries has been duly incorporated or organized, as the case may be, and is validly existing as a corporation or limited liability company in good standing (as applicable) under the laws of the ~~Company~~ jurisdiction in ~~this Agreement are true~~ which it is chartered or organized, with corporate or limited liability company power and ~~correct~~ authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation or limited liability company and is in good standing (as applicable) under the laws of each jurisdiction which requires such qualification, or subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; (ii) the Company’s authorized equity capitalization is as set forth in the Prospectus; the Indenture and the Securities conform in all material respects on to the description thereof contained in the Prospectus; (iii) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the ~~Closing Date~~Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (iisubject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law) and entitled to the benefits of the Indenture; (iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in (A) the ~~Company has complied~~ Time of Sale Information under the headings “Description of Debt Securities” and “Description of the Notes”; (B) the Final Prospectus under the headings, “Description of Debt Securities”, “Description of the Notes” and “Underwriting” and (C) the Registration Statement in ~~all material respects with all agreements~~ Item 15, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and ~~satisfied all conditions on its part to be performed~~ fair summaries of such legal matters, agreements, documents or ~~satisfied hereunder at or before the Closing Date,~~ proceedings; (~~iii~~A) the Registration Statement has become effective under the Act; (B) any required filing of the Basic Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been ~~declared~~ made in the manner and ~~remains effective~~within the time period required by Rule 424(b); (C) any required filing of any Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433; (D) to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or ~~are threatened by the Commission~~threatened, and ~~(iv) since~~ the ~~Time of Sale~~Registration Statement, ~~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~~ any Preliminary Prospectus and the Final Prospectus (~~references~~ other than the financial statements and other financial information contained or incorporated by reference therein and the Form T-1, as to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such ~~officer,~~ counsel need express no opinion) comply as to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied form in all material respects with ~~all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before~~ the ~~Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ applicable requirements of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respectsAct, the ~~power to own its assets~~ Exchange Act and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture ~~Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940~~ Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) respective rules thereunder; and (~~vii~~E) ~~above). Based upon and subject to the foregoing,~~ nothing has come to the attention of such ~~counsel’s attention to cause~~ counsel that causes such counsel to believe that (1) on the Effective Date or the date the Registration ~~Statement~~Statement was last deemed amended, ~~when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith),~~ and at the ~~time it became effective~~Execution Time, the Registration Statement 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~, or that~~ ; (2) the ~~Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus,~~ Final Prospectus as of its date or ~~as of~~ on the ~~date of such opinion, contained~~ Closing Date included or ~~contains~~ includes any untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (3) the Time of Sale Information as of the Time of Sale or, as amended or supplemented (if applicable) as of the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the 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 this paragraph~~ with respect to clauses (1) through (3) above, in each case other than the financial ~~statements, supporting schedules~~ statements and other financial ~~or statistical~~ information contained or incorporated by reference therein and the Form T-1, as to which such counsel need express no opinion); (vi) this Agreement has been duly authorized, executed and delivered by the Company; (vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended; (viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under the securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained; (ix) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its Material Subsidiaries pursuant to, (i) the charter or by-laws of the Company or such subsidiaries, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or such subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or such subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiaries or any of its or their properties; (x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement, ; and (xi) the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or~~ statements in the Prospectus orunder the caption “Material U.S. Federal Income Tax Considerations”, ~~in the case~~ insofar as such statements constitute a summary of the ~~Preliminary Prospectus~~U.S. federal tax laws referred to therein, are accurate and fairly summarize in all material respects the ~~omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus)~~U.S. federal tax laws referred to therein. In rendering such opinion, such counsel may rely (xA) as to matters involving the application of laws ~~other than the laws~~ of any jurisdiction other than ~~New York and~~ the State of Delaware or the Federal laws of the United ~~States~~ States, to the extent they deem proper and specified in such opinion, upon the opinion of ~~America, assume~~ other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the ~~conformity of such laws with the laws of New York~~ Underwriters and (yB) ~~rely~~ as to matters of fact, to the extent ~~deemed proper and as stated therein~~they deem proper, on certificates of responsible officers of the ~~Seller and the~~ Company and its subsidiaries and public ~~officials~~ officials. With respect to opinion (~~references~~ iii) above, such opinion may be rendered by the Company’s Deputy General Counsel with respect to the ~~Preliminary Prospectus or~~ laws of the State of New York. References to the Final Prospectus in this ~~clause~~ paragraph (b) include any ~~amendments or~~ supplements ~~thereto)~~thereto at the Closing Date. (ec) The Representatives shall have received an from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or ~~opinions of McGuireWoods LLP~~opinions, ~~Virginia counsel~~ dated the Closing Date and addressed to the ~~Seller~~ Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Information, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, ~~in form and substance reasonably satisfactory~~ to the ~~Representatives~~ effect that the signers of such certificate have reviewed the Registration Statement, the Time of Sale Information, the Final Prospectus, any supplements to the Final Prospectus and ~~their counsel~~this Agreement and that: (i) ~~With respect~~ the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.Closing Date; (ii) ~~With respect to certain Virginia tax consequences relating~~ to the ~~issuance~~ knowledge of such officers, no stop order suspending the effectiveness of the ~~Notes.~~Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and (iii) To since the ~~effect~~ date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Prospectus. (e) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, constituting statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters and (i) confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder; (ii) confirming that they have performed a review of the unaudited interim financial information of the Company ~~is a limited liability company duly organized~~ for the period ended on and as at the date of the unaudited financial statements of the Company included or incorporated by reference in ~~existence under~~ the ~~laws~~ Registration Statement, the Time of ~~Virginia~~ Sale Information and Final Prospectus, in accordance with Statement on Auditing Standards No. 100; and (iii) stating in effect, except as provided in Schedule I hereto, that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement, the Time of Sale Information and the ~~Company has,~~ Final Prospectus and reported on by them comply as to form in all material ~~respects~~respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the unaudited financial statements of the Company made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the period ended on and as at the date of the unaudited financial statements of the Company included or incorporated by reference in the Registration Statement, the ~~limited liability company power to own its assets~~ Time of Sale Information and ~~operate its business~~ Final Prospectus, as ~~described~~ indicated in their report which is incorporated by reference in the ~~Disclosure Materials, and had at all relevant times, and now has~~Registration Statement, the ~~limited liability company power~~ Time of Sale Information and the Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to ~~acquire~~ the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and ~~own~~ committees of the ~~Receivables~~ Company and its ~~interest in any Collateral Certificate transferred or proposed~~ subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to ~~be transferred~~ transactions and events subsequent to the ~~Issuer as described~~ date of the most recent unaudited financial statements of the Company included or incorporated by reference in the ~~Disclosure Materials.~~Registration Statement, the Time of Sale Information and the Final Prospectus, nothing came to their attention which caused them to believe that: (iv1) To any unaudited financial statements included or incorporated by reference in the ~~effect that the Company had at all relevant time, and now has~~Registration Statement, the ~~limited liability company power~~ Time of Sale Information and the Final Prospectus do not comply as to ~~execute~~form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q or in reports on Form 8-K under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, ~~deliver~~ the Time of Sale Information and ~~perform~~ the ~~terms and provisions of each Program Agreement to which it is a party.~~Final Prospectus; (v2) To with respect to the ~~effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on~~ period subsequent to the ~~part~~ date of the ~~Seller under applicable Virginia~~ most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus, there were any changes, at a specified date not more than three Business Days prior to the date of the le

Appears in 2 contracts

Sources: Underwriting Agreement (General Mills Inc), Underwriting Agreement (General Mills Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the Offered Notes ~~will~~ shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller herein as of the date hereof and the Closing Date~~Company contained in this Agreement, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional conditions ~~precedent~~applicable to the Note Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted, ~~with respect~~ or to the knowledge of the Company, threatened by the Commission. (b) The Company shall have furnished to the Representatives a ~~certificate~~certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of ~~an authorized officer of~~ such certificate has carefully examined the Transaction Documents to which the Company ~~in which such officer~~is a party, and that, to the best of ~~his or her~~ such person’s knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of the Company in this Agreement and the Transaction Documents to which the Company is a party are true and correct in all material ~~respects on~~ respects, and ~~as of the Closing Date, (ii)~~ the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date. (c) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware; Holding is a corporation validly existing and in good standing under the laws of the State of Delaware; and each of the Company and Holding has full power and authority to enter into and perform its obligations under this Agreement and the Transaction Documents and to consummate the transactions contemplated hereby and thereby; (ii) the execution and delivery by each of the Bank, GECC, GECS, Holding, the Issuer and the Company (each, a “Specified Entity”) of this Agreement (if applicable) and the Transaction Documents to which it is a party, and the consummation by each of the transactions contemplated thereby, will not violate any applicable law, statute or governmental rule or regulation; (iii) the execution and delivery by each Specified Entity of this Agreement (if applicable) and the Transaction Documents to which it is a party does not, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of this opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (iv) the execution and delivery by each of the Company and Holding of this Agreement and the Transaction Documents to which it is a party do not, and the consummation by the Company of the transactions contemplated thereby to occur on the date of this opinion will not, violate or contravene any term or provision of the Certificate of Formation or the Limited Liability Company Agreement of the Company or the Certificate of Incorporation or By-Laws of Holding; (v) each of the Transaction Documents (other than the Trust Agreement) constitutes a legal, valid and binding obligation of each of GECC, GECS, the Issuer, the Company and Holding that is a party thereto, enforceable against each such party in accordance with its terms; (vi) each of the Notes is in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified herein or in the Note Purchase Agreement, as applicable, it will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture; (vii) the Issuer is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, required to be registered under the Investment Company Act of 1940, as amended; (viii) the Registration Statement has become effective under the Act, and the Prospectus has been ~~declared~~ filed with the Commission pursuant to Rule 424(b) thereunder in the manner and ~~remains effective~~within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~has been issued~~ and the Prospectus and no proceedings for that purpose have been ~~instituted or are threatened by~~ instituted; (ix) the ~~Commission, and (iv) since the Time of Sale, there has been no material adverse change~~ statements in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Base Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~The Trust—Perfection and Priority of Security Interests” and “~~Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇~~ —Conservatorship and ~~▇▇▇▇▇▇ LLP, special counsel for the Company~~ Receivership; Bankruptcy,” and “ERISA Considerations” and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the ~~Preliminary~~ Prospectus ~~and the Prospectus~~ Supplement under the ~~headings~~ heading “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus under the headings “Certain Legal Aspects of the Receivables” and “Benefit Plan Investors,Structural Summary—ERISA Considerations” to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by ~~such counsel~~ us and are correct in all material respects. (viii) 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. (ix) 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.; (x) In the ~~event~~ Transaction Documents and the ~~Federal Deposit Insurance Corporation were~~ Notes conform in all material respects to ~~be appointed~~ the descriptions thereof contained in the Prospectus; (xi) the Indenture has been duly qualified under the Trust Indenture Act of 1939, as ~~conservator or receiver for~~ amended and complies as to form with the ~~Bank pursuant to Section 11(c)~~ Trust Indenture Act of 1939 and the rules and regulations of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration Commission thereunder; and (xii) each of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, as of its Effective Date, and the ~~Preliminary~~ Prospectus, as of its date, complied as to form in all material respects with the ~~Ratings Issuer Free Writing Prospectus~~ requirements of the Act and the ~~Prospectus~~ rules and ~~have considered~~ regulations under the ~~matters required~~ Act, except that such counsel need not express any opinion as to ~~be stated~~ the financial and statistical data included therein or excluded therefrom or the exhibits to the Registration Statement and, except as, and to the ~~matters stated therein~~extent set forth in paragraphs (ix) and (x), ~~although they are~~ such counsel need not ~~independently verifying~~ assume any responsibility for the accuracy, completeness or fairness of such statements (except as stated in paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration ~~Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement or the ~~Prospectus or, in the case of the Preliminary~~ Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (ed) The Representatives shall have received ~~an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated~~ on the Closing ~~Date~~Date a signed opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~With respect to~~ the ~~perfection~~ Bank is (A) duly organized and validly existing as a Federal savings bank in good standing under the laws of the ~~Company’s interest~~ United States and (B) duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ~~Receivables~~conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the ~~perfection of the Master Trust Trustee’s interest in~~ failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Receivables ~~and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~Sale Agreement; (ii) ~~With respect to certain Virginia tax consequences relating to~~ the ~~issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized~~ Bank has all requisite corporate power and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power authority to execute, deliver and perform its obligations under the ~~terms~~ Receivables Sale Agreement and ~~provisions~~ to consummate the transactions provided for therein; (iii) the execution, delivery and performance by the Bank of the Receivables Sale Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite corporate action on the part of the Bank; (iv) the Receivables Sale Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (v) the execution, delivery and performance by the Bank of the Receivables Sale Agreement and the consummation by the Bank of the transactions provided for therein, do not and will not (A) contravene, violate or constitute a default under any provision of the certificate of incorporation or By-laws of the Bank, (B) to the best of such counsel’s knowledge, contravene or violate any judgment, injunction, order or decree, to which the Bank or its property is subject, (C) to the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement and the Receivables Sale Agreement or (D) contravene violate, conflict with or constitute a default under any agreement, lease, indenture, trust, deed, mortgage, or other instrument of which such counsel is aware to which the Bank is a party or by which the Bank is bound. (e) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President and Counsel, Capital Markets for GE Capital, Retail Finance, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives to the effect that: (i) each ~~Program~~ of GECC and GECS is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Servicing Agreement, the Administration Agreement and the Contribution Agreement to which it is a ~~party~~party in the various capacities set forth therein; (ii) the execution, delivery and performance by each of GECC and GECS of the Servicing Agreement, the Administration Agreement and the Contribution Agreement to which it is a party and the consummation by GECC and GECS of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of GECC and GECS; (iii) the Servicing Agreement, the Administration Agreement and the Contribution Agreement to which it is a party have been duly and validly executed and delivered by GECC and GECS; and (iv) the execution and delivery by each of GECC and GECS of the Servicing Agreement, the Administration Agreement and the Contribution Agreement to which it is a party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or By-laws of GECC or, with respect to the Contribution Agreement, GECS, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which GECC or, with respect to the Contribution Agreement, GECS is a party or by which GECC or, with respect to the Contribution Agreement, GECS is bound, or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over GECC or, with respect to the Contribution Agreement, GECS. (f) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel for the Owner Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Owner Trustee is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware; (ii) the Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and as trustee under the Administration Agreement, and to consummate the transactions contemplated thereby; (iii) the Owner Trustee has duly authorized, executed and delivered the Trust Agreement and the Administration Agreement, as trustee, and the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms; and (iv) neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee contemplated thereby, (A) is in violation of the charter or bylaws of the Owner Trustee or of any law, governmental rule or regulation of the State of Delaware or of the federal laws of the United States governing the trust powers of the Owner Trustee and (B) 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 under the laws of the State of Delaware or the federal laws of the United States governing the trust powers of the Owner Trustee. (g) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Issuer, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Issuer has been duly formed and is validly existing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq., and has the power and authority under the Trust Agreement and the Delaware Statutory Trust Act to execute, deliver and perform its obligations under the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, dated as of September 25, 2003, among the Indenture Trustee, the Issuer, and the Custodian (the “Custody and Control Agreement”) and the Transfer Agreement; (ii) the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, the Transfer Agreement, the Notes to be issued by the Issuer on the Closing Date, and the Certificates have been duly authorized and executed by the Issuer; (iii) the Trust Agreement is a legal, valid and binding obligation of the Company and the Owner Trustee, enforceable against the Company and the Owner Trustee, in accordance with its terms; (iv) neither the execution, delivery or performance by the Issuer of the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement or the Transfer Agreement, nor the consummation by the Issuer of any of the transactions contemplated thereby, (A) 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 Secretary of State, or (B) is in violation of the Trust Agreement or of any law, rule or regulation of the State of Delaware applicable to the Issuer; (v) To under § 3805 (b) and (c) of the ~~effect that~~ Delaware Statutory Trust Act, (A) no ~~consent, approval or authorization~~ creditor of any Certificateholder shall have any right to obtain possession of, or ~~filing with~~otherwise exercise legal or equitable remedies with respect to, ~~any Virginia governmental agency or authority or any Virginia court is required on~~ the ~~part~~ property of the ~~Seller~~ Issuer except in accordance with the terms of the Trust Agreement, and (B) except to the extent otherwise provided in the Trust Agreement, a Certificateholder (including the Company in its capacity as such) has no interest in specific Issuer property; (vi) under ~~applicable Virginia~~ the Delaware Statutory Trust Act, the Issuer is a separate legal entity and, assuming that the Transfer Agreement conveys good title to the Issuer Estate (as defined in the Trust Agreement) to the Issuer as a true sale and not as a security arrangement, the Issuer rather than the Certificateholders will hold whatever title to the Issuer property as may be conveyed to it from time to time pursuant to the Transfer Agreement, except to the extent that the Issuer has taken action to dispose

Appears in 2 contracts

Sources: Underwriting Agreement (RFS Holding LLC), Underwriting Agreement (GE Capital Credit Card Master Note Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or cause to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or cause to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from Ernst & Young LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (COMM 2013-Ccre12 Mortgage Trust), Underwriting Agreement (COMM 2013-Ccre12 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the Offered Notes ~~will~~ shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller herein as of the date hereof and the Closing Date~~Company contained in this Agreement, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional conditions ~~precedent~~applicable to the Note Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted, ~~with respect~~ or to the knowledge of the Company, threatened by the Commission. (b) The Company shall have furnished to the Representatives a ~~certificate~~certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of ~~an authorized officer of~~ such certificate has carefully examined the Transaction Documents to which the Company ~~in which such officer~~is a party, and that, to the best of ~~his or her~~ such person’s knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of the Company in this Agreement and the Transaction Documents to which the Company is a party are true and correct in all material ~~respects on~~ respects, and ~~as of the Closing Date, (ii)~~ the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date. (c) The Representatives shall have received on the Closing Date a signed opinion of M▇▇▇▇ ▇▇▇▇▇ LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware; Holding is a corporation validly existing and in good standing under the laws of the State of Delaware; PLTHL is a limited liability company validly existing and in good standing under the laws of the State of Delaware; and each of the Company, PLTHL and Holding has full power and authority to enter into and perform its obligations under this Agreement and the Transaction Documents and to consummate the transactions contemplated hereby and thereby; (ii) the execution and delivery by each of the Bank, GECC, SYNCHRONY FINANCIAL, PLTHL, Holding, the Issuer and the Company (each, a “Specified Entity”) of this Agreement (if applicable) and the Transaction Documents to which it is a party, and the consummation by each of the transactions contemplated thereby, will not violate any applicable law, statute or governmental rule or regulation; (iii) the execution and delivery by each Specified Entity of this Agreement (if applicable) and the Transaction Documents to which it is a party do not, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of this opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (iv) the execution and delivery by each of the Company and Holding of this Agreement and the Transaction Documents to which it is a party do not, and the consummation by the Company of the transactions contemplated thereby to occur on the date of this opinion will not, violate or contravene any term or provision of the Certificate of Formation or the Limited Liability Company Agreement of the Company or the Certificate of Incorporation or By-Laws of Holding; (v) each of the Transaction Documents (other than the Trust Agreement) constitutes a legal, valid and binding obligation of each of the Bank, GECC, SYNCHRONY FINANCIAL, the Issuer, the Company, PLTHL and Holding that is a party thereto, enforceable against each such party in accordance with its terms; (vi) each of the Notes is in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and, with respect to the Offered Notes, when delivered against payment of the consideration specified herein will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture; (vii) the Issuer (A) is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, required to be registered as an “investment company” under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and, as of the Closing Date, the Issuer satisfies the requirements to rely on the exemption from the definition of “investment company” provided by Section 3(c)(5)(A) under the Investment Company Act, although there may be additional exclusions or exemptions available to the Issuer and (~~iii~~B) is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” as defined in the final regulations issued December 10, 2013, implementing the “V▇▇▇▇▇▇ Rule” (Section 619 of the D▇▇▇-F▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act); (viii) the Registration Statement became effective under the Act not more than three years and 180 days prior to the Closing Date and prior to the date which is three years after the Registration Statement was declared effective by the Commission, the Company filed a new registration statement pursuant to Rule 415(a)(6) of the Act, and the Prospectus has been ~~declared~~ filed with the Commission pursuant to Rule 424(b) thereunder in the manner and ~~remains effective~~within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~has been issued~~ and the Prospectus and no proceedings for that purpose have been ~~instituted or are threatened by~~ instituted; (ix) the ~~Commission, and (iv) since the Time of Sale, there has been no material adverse change~~ statements in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Base Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~The Trust—Perfection and Priority of Security Interests” and “~~Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇~~ —Conservatorship and ~~▇▇▇▇▇▇ LLP, special counsel for the Company~~ Receivership; Bankruptcy,” and “ERISA Considerations” and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the ~~Preliminary~~ Prospectus ~~and the Prospectus~~ Supplement under the ~~headings~~ heading “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus under the headings “Certain Legal Aspects of the Receivables” and “Benefit Plan Investors,Structural Summary—ERISA Considerations” 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. (viii) 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. (ix) 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.; (x) In the ~~event~~ Transaction Documents and the ~~Federal Deposit Insurance Corporation were~~ Notes conform in all material respects to ~~be appointed as conservator or receiver for~~ the ~~Bank pursuant to Section 11(c~~descriptions thereof contained in the Prospectus; (xi) the Indenture has been duly qualified under the Trust Indenture Act of ~~the Federal Deposit Insurance Act~~1939, as amended, ~~in a matter properly briefed~~ and ~~presented~~ complies as to ~~a federal court~~ form with ~~jurisdiction over such conservatorship or receivership,~~ the ~~court, exercising reasonable judgment after full consideration~~ Trust Indenture Act of ~~all relevant factors in a properly presented~~ 1939 and ~~argued case, would hold that~~ the ~~Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property~~ rules and regulations of the ~~Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or~~ Commission thereunder; and (Bxii) ~~avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives~~ each of ~~the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning~~ the Registration Statement, as of its Effective Date, and the ~~Preliminary~~ Prospectus, as of its date, complied as to form in all material respects with the ~~Ratings Issuer Free Writing Prospectus~~ requirements of the Act and the ~~Prospectus~~ rules and ~~have considered~~ regulations under the ~~matters required~~ Act, except that such counsel need not express any opinion as to ~~be stated~~ the financial and statistical data included therein or excluded therefrom or the exhibits to the Registration Statement and, except as, and to the ~~matters stated therein~~extent set forth in paragraphs (ix) and (x), ~~although they are~~ such counsel need not ~~independently verifying~~ assume any responsibility for the accuracy, completeness or fairness of such statements (except as stated in paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration ~~Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement or the ~~Prospectus or, in the case of the Preliminary~~ Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (ed) The Representatives shall have received ~~an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated~~ on the Closing ~~Date~~Date a signed opinion of D▇▇▇▇▇ ▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~With respect to~~ the ~~perfection~~ Bank is (A) duly organized and validly existing as a Federal savings association in good standing under the laws of the ~~Company’s interest~~ United States and (B) duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ~~Receivables~~conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the ~~perfection of the Master Trust Trustee’s interest in~~ failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Receivables ~~and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~Sale Agreement; (ii) ~~With respect to certain Virginia tax consequences relating to~~ the ~~issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized~~ Bank has all requisite corporate power and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power authority to execute, deliver and perform its obligations under each of the ~~terms~~ Receivables Sale Agreement and ~~provisions~~ the Receivables Purchase Agreement and to consummate the transactions provided for therein; (iii) the execution, delivery and performance by the Bank of each ~~Program~~ of the Receivables Sale Agreement and the Receivables Purchase Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite corporate action on the part of the Bank; (iv) each of the Receivables Purchase Agreement and the Receivables Sale Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (v) the execution, delivery and performance by the Bank of each of the Receivables Purchase Agreement and the Receivables Sale Agreement and the consummation by the Bank of the transactions provided for therein, do not and will not (A) contravene, violate or constitute a default under any provision of the certificate of incorporation or by-laws of the Bank, (B) to the best of such counsel’s knowledge, contravene or violate any judgment, injunction, order or decree, to which the Bank or its property is subject, (C) to the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement and the Receivables Sale Agreement or (D) contravene, violate, conflict with or constitute a default under any agreement, lease, indenture, trust, deed, mortgage or other instrument of which such counsel is aware to which the Bank is a party or by which the Bank is bound. (e) The Representatives shall have received on the Closing Date a signed opinion of D▇▇▇▇▇ ▇▇, Senior Counsel for SYNCHRONY FINANCIAL, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives to the effect that: (i) SYNCHRONY FINANCIAL is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Synchrony Sub-Servicing Agreement, the Administration Agreement and the Contribution Agreement in the various capacities set forth therein; (ii) the execution, delivery and performance by SYNCHRONY FINANCIAL of the Synchrony Sub-Servicing Agreement, the Administration Agreement and the Contribution Agreement and the consummation by SYNCHRONY FINANCIAL of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of SYNCHRONY FINANCIAL; (iii) the Synchrony Sub-Servicing Agreement, the Administration Agreement and the Contribution Agreement have been duly and validly executed and delivered by SYNCHRONY FINANCIAL; and (iv) the execution and delivery by SYNCHRONY FINANCIAL of the Synchrony Sub-Servicing Agreement, the Administration Agreement and the Contribution Agreement to which it is a ~~party~~party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or by-laws of SYNCHRONY FINANCIAL, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which SYNCHRONY FINANCIAL is a party or by which SYNCHRONY FINANCIAL is bound or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over SYNCHRONY FINANCIAL. (f) The Representatives shall have received on the Closing Date a signed opinion of M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Associate General Counsel, Securitizations, Capital Markets, GECC, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated as of the Closing Date and addressed to the Representatives to the effect that: (i) GECC is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Servicing Agreement and the Synchrony Sub-Servicing Agreement; (ii) the execution, delivery and performance by GECC of the Servicing Agreement and the Synchrony Sub-Servicing Agreement and the consummation by GECC of the transactions contemplated thereby have been duly authorized by all necessary corporate action and delivered by GECC; (iii) the Servicing Agreement and the Synchrony Sub-Servicing Agreement have been duly and validly executed and delivered by GECC; (iv) the execution and delivery by GECC of the Servicing Agreement and the Synchrony Sub-Servicing Agreement to which it is a party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or by-laws of GECC, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which GECC is a party or by which GECC is bound or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over GECC. (g) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & F▇▇▇▇▇, P.A., counsel for the Owner Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Owner Trustee is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware; (ii) the Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and as trustee under the Administration Agreement, and to consummate the transactions contemplated thereby; (iii) the Owner Trustee has duly authorized, executed and delivered the Trust Agreement and the Administration Agreement, as trustee, and the Trust Agreement 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 of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee 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 federal laws of the United States governing the trust powers of the Owner Trustee; and (v) To neither the ~~effect that no consent~~execution, delivery and performance by the Owner Trustee of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee contemplated thereby, requires the consent or approval ~~or authorization~~ of, ~~or filing with, any Virginia governmental agency or authority or any Virginia court is required~~ the withholding of objection on the part of, the giving of notice to, the ~~Seller~~ filing, registration or qualification with, or the taking of any other action in respect of, any governmental authority or agency under ~~applicable Virginia~~ t

Appears in 2 contracts

Sources: Underwriting Agreement (RFS Holding LLC), Underwriting Agreement (RFS Holding LLC)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or cause to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or cause to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Sidley Austin LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Sidley Austin LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Sidley Austin LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from KPMG, LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (COMM 2014-Ccre16 Mortgage Trust), Underwriting Agreement (COMM 2014-Ccre16 Mortgage Trust)

Conditions to the Obligations of the Underwriters. ~~The~~ Your obligations ~~of the Underwriters~~ hereunder to purchase ~~and pay for~~ the Designated Notes ~~will~~ shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer~~ Company and the ~~Seller~~ Sponsor contained herein as of the date ~~hereof~~ hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date and as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer~~ Company and the ~~Seller~~ Sponsor made in any certificates delivered pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer~~ Company and the ~~Seller in all material respects~~ Sponsor of ~~their~~ its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The ~~Representatives~~ Registration Statement 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 become effective 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 and remains effective, no stop order suspending the effectiveness of the Registration ~~Statement has~~ Statement, as amended from time to time, shall have been issued and not withdrawn and no proceedings for that purpose shall have been instituted or ~~are threatened by~~ threatened; and the ~~Commission, and (iv) since~~ Final Prospectus shall have been filed or transmitted for filing with the ~~Time~~ Commission in accordance with Rule 424 under the 1933 Act. Any request of ~~Sale, there has been no material adverse change~~ the Commission for inclusion of additional information in the ~~condition (financial~~ Registration Statement or ~~otherwise) of~~ the ~~Company’s business, except as set forth in or contemplated in the Preliminary~~ Base Prospectus ~~(references to the Preliminary Prospectus in this clause include any supplements thereto)~~shall have been complied with. (b) ~~The Representatives~~ Each of you shall have ~~received~~received from ▇▇▇▇▇ & ▇▇▇▇▇, ~~with respect~~ counsel to the ~~Seller~~Company, a ~~certificate~~favorable statement, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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 No facts have come to the benefits of the Pooling and Servicing Agreement. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge attention of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, counsel which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to such counsel’s attention to cause such counsel lead them to believe that the Registration ~~Statement, when taken together with~~ Statement and the ~~Ratings Issuer Free Writing~~ Final Prospectus (~~excluding~~ other than the financial statements and other financial and statistical data contained therein, as to which we are not called upon to express any ~~exhibits filed therewith~~belief), at the time it the Registration Statement 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements ~~therein, in light of the circumstances under which they were made,~~ therein not misleading, or that the ~~Prospectus~~Final Prospectus (other than the financial statements and other financial and statistical data contained therein, ~~when taken together with the Ratings Issuer Free Writing Prospectus~~as to which we are not called upon to express any belief), as of its date or and as of the date ~~of such opinion~~hereof, contained or contains any untrue statement of a material ~~fact~~ fact, or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading. Such counsel may: (~~it being understood that such counsel has not been requested~~ 1) express its reliance as to factual matters on the representations and ~~does not make any comment in this paragraph with respect to the financial statements~~warranties made by, ~~supporting schedules~~ and on certificates or other ~~financial or statistical information contained in the Registration Statement~~documents furnished by officers of, the ~~Preliminary Prospectus~~parties to this Agreement, ~~when taken together with~~ the ~~Ratings Issuer Free Writing Prospectus or~~ Trust Agreement, the ~~Prospectus or~~Indenture, in the ~~case~~ Sale and Servicing Agreement and the Insurance and Indemnity Agreement; (2) assume the due authorization, execution and delivery of the ~~Preliminary Prospectus,~~ instruments and documents referred to therein by the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus). In rendering such opinion, counsel may (x) as to matters involving the application of laws parties thereto other than the Company; (3) qualify such opinion only as to the federal laws of ~~any jurisdiction other than New York and~~ the United States of America, ~~assume the conformity of such laws with~~ the laws of the State of New York and ~~(y) rely as to matters~~ the general corporation law of ~~fact~~the State of Delaware. Such counsel shall also confirm that each of you may rely, ~~to the extent deemed proper~~ on and as ~~stated therein~~of the Closing Date, on ~~certificates of responsible officers of the Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include~~ any ~~amendments or supplements thereto). (e) The Representatives shall have received an~~ opinion or opinions of ~~McGuireWoods~~ such counsel submitted to the rating agency or agencies rating the Designated Notes as if addressed to each of you and dated the Closing Date. (c) Each of you shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ~~Virginia counsel to the Seller and the Company~~your counsel, a favorable opinion, dated the Closing Date, ~~in form and substance reasonably satisfactory~~ to the ~~Representatives~~ effect that (i) for federal income tax purposes the Designated Notes will be treated as indebtedness and ~~their counsel~~(ii) the Trust will not be treated as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool; (d) Each of you shall have received a certificate, signed by the president, a senior vice president or a vice president of the Company and the Sponsor, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Trust Agreement, the Indenture, the Sale and Servicing Agreement, the Insurance and Indemnity Agreement, and this Agreement and that, to the best of his or her knowledge based upon reasonable investigation: (i) ~~With respect~~ the representations and warranties of the Company and the Sponsor in this Agreement, as of the Closing Date, and in the Sale and Servicing Agreement, the Trust Agreement and the Insurance and Indemnity Agreement and in all related agreements, as of the date specified in such agreements, are true and correct, and the Company and the Sponsor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.Closing Date; (ii) ~~With respect to certain Virginia tax consequences relating~~ there are no actions, suits or proceedings pending, or to the ~~issuance~~ best of such’s knowledge, threatened against or affecting the Company or the Sponsor which if adversely determined, individually or in the aggregate, would be reasonably likely to adversely affect the Company’s or the Sponsor’s obligations under the Sale and Servicing Agreement, the Insurance and Indemnity Agreement or this Agreement in any material way or the Sponsor’s obligations under the Trust Agreement in any material way; and no merger, liquidation, dissolution or bankruptcy of the ~~Notes.~~Company or the Sponsor is pending or contemplated; (iii) To the information contained in the Registration Statement and the Final Prospectus relating to the Company and the Sponsor, the Mortgage Loans or the servicing procedures of it or its affiliates or subservicer is true and accurate in all material respects and nothing has come to his or her attention that would lead such officer to believe that the Registration Statement or Final Prospectus includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading; (iv) the information set forth in the Schedule of Mortgage Loans required to be furnished pursuant to the Sale and Servicing Agreement is true and correct in all material respects; (v) there has been no amendment or other document filed affecting the certificate of incorporation or bylaws of the Company or the certificate of formation or operating agreement of the Sponsor, in each case since December 31, 2003, and no such amendment has been authorized. No event has occurred since December 31, 2003, which has affected the good standing of the Company under the laws of the State of New York or the good standing of the Sponsor under the laws of the State of Delaware; (vi) there has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company, the Sponsor and its subsidiaries, taken as a whole, from December 31, 2003. (vii) on or prior to the Closing Date, there has been no downgrading, nor has any notice been given of (A) any intended or potential downgrading or (B) any review or possible changes in rating the direction of which has not been indicated, in the rating, if any, accorded the Company or its affiliates or in any rating accorded any securities of the Company, if any, by any “nationally recognized statistical rating organization,” as such term is defined for purposes of the 1933 Act; (viii) each person who, as an officer or representative of the Company or the Sponsor, signed or signs the Registration Statement, the Sale and Servicing Agreement, the Trust Agreement, the Insurance and Indemnity Agreement, this Agreement or any other document delivered pursuant hereto, on the date of such execution, or on the Closing Date, as the case may be, in connection with the transactions described in the Sale and Servicing Agreement, the Trust Agreement, the Insurance and Indemnity Agreement and this Agreement was, at the respective times of such signing and delivery, and is now, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents are their genuine signatures; and (ix) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company’s or the Sponsor’s knowledge, threatened. The Company and the Sponsor shall attach to such certificate a true and correct copy of its certificate of incorporation or certificate of formation, as appropriate, and bylaws or operating agreement, as appropriate, which are in full force and effect on the date of such certificate and a certified true copy of the resolutions of its Board of Directors or members, as appropriate, with respect to the transactions contemplated herein. (e) Each of you shall have received a certificate, signed by the president, a senior vice president or a vice president of Terwin Advisors, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Sale and Servicing Agreement and that, to the best of his or her knowledge based upon reasonable investigation: (i) the representations and warranties of Terwin Advisors in the Sale and Servicing Agreement and in all related agreements, as of the date specified in such agreements, are true and correct, and Terwin Advisors has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) there are no actions, suits or proceedings pending, or to the best of such’s knowledge, threatened against or affecting Terwin Advisors which if adversely determined, individually or in the aggregate, would be reasonably likely to adversely affect Terwin Advisors’ obligations under the Sale and Servicing Agreement in any material way; and no merger, liquidation, dissolution or bankruptcy of Terwin Advisors is pending or contemplated; (iii) the information contained in the Final Prospectus relating to Terwin Advisors is true and accurate in all material respects and nothing has come to his or her attention that would lead such officer to believe that the Final Prospectus includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading; (iv) there has been no amendment or other document filed affecting the certificate of incorporation or bylaws of Terwin Advisors since December 31, 2003, and no such amendment has been authorized. No event has occurred since December 31, 2003, which has affected the good standing of the Company under the laws of the State of Delaware; (v) there has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of Terwin Advisors, taken as a whole, from December 31, 2003; and (vi) each person who, as an officer or representative of Terwin Advisors, signed or signs the Sale and Servicing Agreement or any other document delivered pursuant thereto, on the date of such execution, or on the Closing Date, as the case may be, in connection with the transactions described in the Sale and Servicing Agreement was, at the respective times of such signing and delivery, and is now, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents are their genuine signatures. Terwin Advisors shall attach to such certificate a true and correct copy of its certificate of incorporation and bylaws which are in full force and effect on the date of such certificate and a certified true copy of the resolutions of its Board of Directors with respect to the transactions contemplated herein. (f) Each of you shall have received from ▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Company, an opinion, dated the Closing Date, to the effect that: (i) Each of the Company and the Sponsor has been duly organized and is validly existing as a corporation (with respect to the Company) or a limited liability company ~~duly organized and~~ (with respect to the Sponsor) in ~~existence~~ good standing under the laws of ~~Virginia~~ its state of formation and is qualified to do business in each state necessary to enable it to perform its obligations under the Sale and Servicing Agreement, this Agreement, the Indenture, the Trust Agreement and the Insurance and Indemnity Agreement and has all power and authority necessary to own or hold its properties and to conduct its business as now conducted by it and to enter into and perform its obligations under this Agreement, the Indenture, the Trust Agreement, the Sale and Servicing Agreement and the Insurance and Indemnity Agreement; (ii) To the best knowledge of such counsel, there are no actions, proceedings or investigations pending or threatened against or affecting the Company ~~has~~or the Sponsor before or by any court, arbitrator, administrative agency or other governmental authority reasonably likely to be adversely determined that would materially and adversely affect the ability of the Company or the Sponsor to carry out the transactions contemplated in this Agreement, the Indenture, the Trust Agreement, the Sale and Servicing Agreement or the Insurance and Indemnity Agreement; (iii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Company or the Sponsor of the transactions contemplated herein, except such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Designated Notes and except any recordation of the assignments of the Mortgage Loans to the Trustee pursuant to the Sale and Servicing Agreement that have not yet been completed; (iv) The Company is not in violation of its certificate of incorporation or by-laws, the Sponsor is not in violation of its certificate of formation or operating agreement, neither the Company nor the Sponsor is in default under any agreement, indenture or instrument the effect of which violation or default would be material to the Company or the Sponsor, and neither the issuance and sale of the Designated Notes, nor the execution or delivery of or performance under this Agreement, the Indenture, the Trust Agreement, the Sale and Servicing Agreement or the Insurance and Indemnity Agreement, nor the consummation of any other of the transactions contemplated herein or therein will conflict with or result in a breach or violation of any term or provision of, or constitute a default (or an event which with the passing of time or notification, or both, would constitute a default) under, the certificate of incorporation or by-laws of the Company, the certificate of formation or operating agreement of the Sponsor, or, to the knowledge of such counsel, any indenture or other agreement or instrument to which the Company or the Sponsor or any of its affiliates is a party or by which it or any of them is bound, or any New York or federal statute or regulation applicable to the Company or the Sponsor or any of its affiliates or, to the knowledge of such counsel, any order of any New York or federal court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or the Sponsor or any of its affiliates; (v) Each of the Company and the Sponsor possesses all material ~~respects~~licenses, certificates, authorities or permits issued by the ~~limited liability company power~~ appropriate State, Federal or foreign regulatory agencies or bodies necessary to ~~own its assets~~ conduct the business now conducted by it and ~~operate its business~~ as described in the ~~Disclosure Materials~~Final Prospectus, and ~~had at all relevant times, and now has,~~ neither the ~~limited liability company power to acquire and own~~ Company nor the ~~Receivables and its interest in~~ Sponsor has received notice of any ~~Collateral Certificate transferred or proposed to be transferred~~ proceedings relating to the ~~Issuer as described~~ revocation or modification of any such license, certificates, authority or permit which if decided adversely to the Company or the Sponsor would, singly or in the ~~Disclosure Materials~~aggregate, materially and adversely affect the conduct of its business, operations or financial condition. (ivvi) To The Sale and Servicing Agreement, this Agreement, the ~~effect that~~ Indenture and the Insurance and Indemnity Agreement have been duly authorized, executed and delivered by the Company ~~had at all relevant time~~and the Sponsor and constitute legal, valid and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part binding agreements of the ~~Seller under applicable Virginia~~ Company and the Sponsor, enforceable against the Company and the Sponsor in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights gener

Appears in 2 contracts

Sources: Underwriting Agreement (Greenpoint Mortgage Securities LLC), Underwriting Agreement (GreenPoint Home Equity Loan Trust 2004-3)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the Company, the Issuer and the Seller herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company, the Issuer and the Seller made pursuant to the provisions thereof, to the performance by the Company, the Issuer and the Seller in all material respects of their obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to the Company, a certificate, dated the Closing Date, of an authorized officer of the Company in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.”[Reserved] (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ~~and~~ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) The Bank is validly existing as a national banking association under the laws of the United States, and the Bank has the corporate power to acquire, own and service the Receivables and to acquire and own its interest in any related Funds Collateral as transferred to the Company as described in the Preliminary Prospectus and Prospectus. (ii) The Bank has the corporate power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of Program Agreement to which the Bank is a party has been duly authorized by all necessary corporate action on the part of the Bank and has been duly executed and delivered by the Bank. (iv) No consent, approval or authorization of, or filing with, any United States governmental agency or authority is required on the part of the Bank under United States federal law for the consummation by the Bank of the transactions set forth in the Program Agreements to which it is a party, except such as have been obtained or made and except for such filings as may be required to perfect the security interest in the Receivables and any related Funds Collateral pursuant to the Receivables Purchase Agreement. (v) No consent, approval or authorization of, or filing with, any United States governmental agency or authority is required on the part of the Company under United States federal law for the consummation by the Company of the transactions set forth in the Program Agreements to which it is a party, except such as have been obtained or made and except for such filings as may be required to perfect the security interest in the Receivables and any related Funds Collateral pursuant to the Pooling and Servicing Agreement or in the Collateral Certificate pursuant to the Transfer Agreement. (vi) None of the execution and delivery by the Bank of the Program Agreements to which it is party, the performance by the Bank of its obligations under the Program Agreements to which it is a party or the transfer by the Bank of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer will, (A) result in a violation of any of the terms of the applicable organizational documents of the Bank, each as amended, (B) result in a violation of any rule, statute or regulation, to the extent the foregoing relate to United States federal law, of any United States regulatory body, or administrative or governmental agency having jurisdiction over the Bank, or (C) result in a breach of any of the terms of or constitute a default under the terms of any indenture or other material agreement or instrument to which the Bank is a party and identified in such opinion; provided, however, it shall not be necessary to express any opinion with respect to any federal or state securities or Blue Sky laws. (vii) None of the execution and delivery by the Company of the Program Agreements to which it is a party, the performance by the Company of its obligations under the Program Agreements to which it is a party or the transfer by the Bank of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer will, (A) result in a violation of any rule, statute or regulation, to the extent the foregoing relate to United States federal law, of any United States regulatory body, or administrative or governmental agency having jurisdiction over the Company, or (B) result in a breach of any of the terms of or constitute a default under the terms of any indenture or other material agreement or instrument to which the Company is a party and identified in such opinion; provided, however, it shall not be necessary to express any opinion with respect to any federal or state securities or Blue Sky laws. (viii) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the ~~legal,~~ valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller in accordance with its terms. (iiix) 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (~~iii~~x) The Indenture has been qualified under the Trust Indenture Act. (ivxi) 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. (vxii) Each of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vixiii) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ “Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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~~xiv) The statements in the Preliminary Prospectus and the Prospectus 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. (~~viii~~xv) 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. (ixxvi) 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. (xxvii) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vixiii) and (~~vii~~xiv) 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, when taken together with the Ratings Issuer Free Writing Prospectus (in each case, excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ~~Prospectus~~ Prospectus, or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of ~~McGuireWoods~~ ▇▇▇▇▇▇▇▇▇▇▇▇ LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant ~~time~~times, and now has, the limited liability company power and authority to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party and has taken all necessary limited liability company action to duly authorize the execution, delivery and performance thereof. (v) To the effect that, to the extent governed by the laws of Virginia, the Company has duly executed and delivered each Program Agreement to which it is a party. (vvi) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia law for the due performance by the Seller of any Program Agreement to which it is a party, except for (A) such consents, approvals, authorizations or filings as have been previously obtained or made and (B) such filings as may be necessary to perfect or continue the perfection of the security interest in the Receivables granted pursuant to the Receivables Purchase Agreement. (vii) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Company under applicable Virginia law for the due performance by the Company of any Program Agreement to which it is a party, except for (A) such consents, approvals, authorizations or filings as have been previously been obtained or made, (B) such filings as may be necessary to perfect or conti

Appears in 2 contracts

Sources: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Funding, LLC)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the Notes ~~will~~ hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller herein as of the date hereof and the Closing Date~~Company contained in this Agreement, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional conditions ~~precedent~~applicable to the Note Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted, ~~with respect~~ or to the knowledge of the Company, threatened by the Commission. (b) The Company shall have furnished to the Representatives a ~~certificate~~certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of ~~an authorized officer of~~ such certificate has carefully examined the Transaction Documents to which the Company ~~in which such officer~~is a party, and that, to the best of ~~his or her~~ such person’s knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of the Company in this Agreement and the Transaction Documents to which the Company is a party are true and correct in all material ~~respects on~~ respects, and ~~as of the Closing Date, (ii)~~ the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an on the Closing Date a signed opinion of ~~the general counsel~~M▇▇▇▇ ▇▇▇▇▇ LLP, ~~deputy general counsel, chief~~ special New York counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the ~~Representatives), dated the Closing Date~~Company, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~Capital One Bank (USA), National Association~~ the Company is a ~~national banking association~~ limited liability company validly existing and in good standing under the laws of the ~~United States~~State of Delaware, and ~~the Bank has, in all material respects, the~~ has full power and authority to ~~own~~ enter into and perform its ~~assets and operate its business as described in the Disclosure Materials,~~ obligations under this Agreement and the ~~Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements~~ Transaction Documents to which it is a ~~party,~~ party and to consummate the transactions ~~set forth herein and therein.~~contemplated thereby; (~~iii~~ii) ~~Each~~ the execution, delivery and performance by the Company of this Agreement and the ~~Program Agreements~~ Transaction Documents to which the ~~Seller~~ Company is a party ~~has~~ have been duly authorized by all necessary action on the part of the ~~Seller~~ Company; (iii) each of the Transaction Documents to which the Company, the Bank or the Issuer (each, a “Specified Entity” and ~~has been duly executed~~ collectively, the “Specified Entities”) is a party constitutes a legal, valid and ~~delivered by~~ binding obligation of each such Specified Entity that is a party thereto, enforceable against each such Specified Entity in accordance with its terms; provided, that no such opinion need be expressed with respect to the ~~Seller.~~Trust Agreement; (iv) ~~Each~~ the execution and delivery by each Specified Entity of this Agreement and the Transaction Documents to which it is a party, and the consummation by each Specified Entity of the ~~Program Agreements~~ transactions contemplated thereby, will not violate any applicable statutory law or governmental rule or regulation; (v) the execution and delivery by each Specified Entity of this Agreement and the Transaction Documents to which ~~the Company~~ it is a party ~~has~~ do not, or did not, as applicable, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of the opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been ~~duly authorized~~ made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (vi) the execution and delivery by ~~all necessary~~ the Company of this Agreement and the Transaction Documents to which it is a party do not, or did not, as applicable, and the consummation by the Company of the transactions contemplated thereby to occur on the date of the opinion will not violate or contravene or constitute a default under any term or provision of the certificate of formation or the limited liability company ~~action on the part~~ agreement of the ~~Company~~ Company; (vii) each of the Notes is in due and ~~has been duly executed and delivered by the Company~~ proper form, and when ~~the Collateral Certificate has been~~ executed, authenticated and delivered as specified in the Indenture, and delivered against payment of the consideration specified herein, each of the Notes will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with ~~the terms of the Pooling and Servicing Agreement~~its terms, ~~the Collateral Certificate will be duly and validly issued and outstanding~~ and will be entitled to the benefits of the Pooling and Servicing Agreement. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws.; (viii) ~~Except~~ the Indenture has been duly qualified under the Trust Indenture Act of 1939, as ~~otherwise disclosed in~~ amended, and complies as to form with the ~~Preliminary Prospectus or~~ TIA and the rules and regulations of the Commission thereunder; (ix) the Registration Statement, as of its Effective Date and the Prospectus, as of its date, complied as to form in all material respects with the ~~knowledge~~ requirements of the Act and the rules and regulations under the Act, except that (i) such ~~counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before~~ counsel need not express any ~~court, administrative agency or other tribunal~~ opinion as to (A) ~~asserting~~ the ~~invalidity of the Program Agreements~~financial and statistical data included therein or excluded therefrom, (B) ~~seeking to prevent~~ any other documents or information incorporated by reference in the ~~issuance of the Collateral Certificate~~ Registration Statement or the ~~Notes or the consummation of any of the transactions set forth by the Program Agreements~~Prospectus, ~~which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or~~ (C) ~~seeking adversely~~ any exhibits to ~~affect~~ the ~~United States federal income tax attributes~~ Registration Statement and (D) compliance by the Company and each issuing entity previously established, directly or indirectly, by the Company or any affiliate of the ~~Notes~~ Company with the registrant requirements set forth in General Instruction I.A.2 of Form SF-3 as ~~described~~ of any required date and (ii) except as and to the extent set forth in paragraphs (xi) and (xii) below, such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the ~~Preliminary~~ Registration Statement or the Prospectus; (x) the Registration Statement became effective under the Act not more than three (3) years prior to the Closing Date, and the Prospectus or has been filed with the Commission pursuant to Rule 424(b) thereunder in the manner and within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement and the Prospectus and no proceedings for that purpose have been instituted; (xi) the statements in the Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~The Trust—Perfection and Priority of Security Interests,” “—Conservatorship and Receivership of Synchrony Bank,” “Certain Considerations for ERISA and Other U.S. Employee Benefit Plans” and “~~Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇~~ Structural Summary—Certain Considerations for ERISA and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus under the headings “Certain Legal Aspects of the Receivables” and “Other U.S. Employee Benefit ~~Plan Investors~~Plans,” 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.; (~~viii~~xii) 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. (ix) 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,~~ Transaction Documents and the Notes ~~will constitute~~ conform in all material respects to the ~~legal, valid and binding obligations of~~ descriptions thereof contained in the Prospectus; and (xiii) the Issuer enforceable against the Issuer in accordance with their terms. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) ~~reclaim~~is not now, ~~recover or recharacterize as property~~ and immediately following the issuance of the ~~Bank or the receivership the assets that have been transferred by the Bank to the Company~~ Notes pursuant to the ~~Receivables Purchase Agreement~~ Indenture will not be, required to be registered under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and as of the Closing Date, the Issuer satisfies the requirements to rely on the exemption from the definition of “investment company” provided by Rule 3a-7 of the Investment Company Act, although there may be additional exclusions or exemptions available to the Issuer and (B) ~~avoid~~ is not now, and immediately following the ~~Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives~~ issuance of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject Notes pursuant to the ~~foregoing~~Indenture will not be, nothing has come to such counsel’s attention to cause such counsel to believe that the Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, “covered fund” as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only defined in the final ~~Prospectus). In rendering such opinion~~regulations issued on December 10, ~~counsel may~~ 2013, implementing the “V▇▇▇▇▇▇ Rule” (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 Section 619 of the ~~Seller~~ D▇▇▇-F▇▇▇▇ ▇▇▇▇ Street Reform and ~~the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto~~Consumer Protection Act). (ed) The Representatives shall have received ~~an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated~~ on the Closing ~~Date~~Date a signed opinion of P▇▇▇ ▇▇▇▇▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~With respect to~~ the ~~perfection~~ Bank is duly organized and validly existing as a federal savings association in good standing under the laws of the ~~Company’s interest in the Receivables, the perfection~~ United States of ~~the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~America; (ii) ~~With respect~~ the Bank is duly qualified to ~~certain Virginia tax consequences relating~~ do business and is in good standing as a foreign corporation in each jurisdiction where the conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the ~~issuance of~~ Servicing Agreement, the ~~Notes.~~Receivables Sale Agreement, the Administration Agreement, the Risk Retention Agreement, this Agreement and the Asset Representations Review Agreement; (iii) To the ~~effect that the Company is a limited liability company duly organized~~ Bank has all requisite banking power and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power authority to execute, deliver and perform its obligations under the Servicing Agreement, the Receivables Sale Agreement, the Asset Representations Review Agreement, the Risk Retention Agreement, the Administration Agreement and this Agreement and to consummate the transactions provided for therein; (iv) the execution, delivery and performance by the Bank of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite action on the part of the Bank; (v) each of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (vi) the execution, delivery and performance by the Bank of each of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement and the consummation of the transactions contemplated thereby do not and will not conflict with, result in a breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under: (a) the charter of the Bank, (b) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument or agreement to which the Bank is a party or by which the Bank is bound or (c) to such counsel’s knowledge, and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over the Bank; (vii) the execution, delivery and performance by the Bank of each ~~Program~~ of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement and the consummation of the transactions contemplated thereby do not and will not, to ~~which it is a party.~~the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement; (vviii) ~~To the effect that~~ no authorization, approval, consent, ~~approval~~ order, registration, qualification or ~~authorization of,~~ license of or filing with, any ~~Virginia~~ government, governmental ~~agency~~ instrumentality, agency, body or ~~authority~~ court, domestic or ~~any Virginia court~~ foreign, or third party is required for the performance by the Bank of all of its obligations under the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement, or the consummation by the Bank of the transactions contemplated by the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement; and (ix) there is no action, suit or proceeding before or by any government, governmental instrumentality, agency, body or court, domestic or foreign, now pending or, to the best of such counsel’s knowledge, threatened, against or affecting the Bank (a) asserting the invalidity of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement or the Administration Agreement or (b) that might materially and adversely affect the performance by the Bank of its obligations under, or the validity or enforceability of, the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement or the Administration Agreement. (e) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & F▇▇▇▇▇, P.A., counsel for the Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Trustee is validly existing as a national banking association under the federal laws of the United States of America and has the corporate power and authority to execute, deliver and perform its obligations under the Trust Agreement and to consummate the transactions contemplated thereby; (ii) the Trust Agreement has been duly authorized, executed and delivered by the Trustee; (iii) neither the execution, delivery and performance by the Trustee of the Trust Agreement, nor the consummation of any of the transactions by the Trustee 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 under the laws of the ~~Seller~~ State of Delaware or the federal laws of the United States of America governing the trust powers of the Trustee; and (iv) neither the execution, delivery and performance by the Trustee of the Trust Agreement, nor the consummation of any of the transactions by the Trustee contemplated thereby, is in violation of the articles of association or bylaws of the Trustee or of the laws of the State of Delaware or of the federal laws of the United States of America governing the trust powers of the Trustee. (f) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel for the Delaware Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Delaware Trustee is validly existing as a national banking association under ~~applicable Virginia~~ the federal laws of the United States of America and has the corporate power and authority to execute, deliver and perform its obligations under the Trust Agreement and to consummate the transactions contemplated thereby; (ii) the Trust Agreement has been duly authorized, executed and delivered by the Delaware Trustee; (iii) neither the execution, delivery and performance by the Delaware Trustee of the Trust Agreement, nor the consummation of any of the transactions by the Delaware Trustee 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 under the laws of the State of Delaware or the federal laws of the United States of America governing the trust powers of the Delaware Trustee; and (iv) neither the execution, delivery and performance by the Delaware Trustee of the Trust Agreement, nor the consummation of any of the transactions by the Delaware Trustee contemplated thereby, is in violation of the articles of association or bylaws of the Delaware Trustee or of the laws of the State of Delaware or of the federal laws of the United States of America governing the trust p

Appears in 2 contracts

Sources: Underwriting Agreement (Synchrony Card Issuance Trust), Underwriting Agreement (Synchrony Card Issuance Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Registered Certificates shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date ~~hereof~~ hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date and as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have ~~received,~~ been issued and not withdrawn and no proceedings for that purpose shall have been instituted or threatened; and the Final Prospectus shall have been filed or transmitted for filing with ~~respect~~ the Commission in accordance with Rule 424 under the ▇▇▇▇ ▇▇▇. (b) The Company shall have delivered to you a certificate of the Company, signed by the President or a ~~certificate,~~ vice president or an assistant vice president of the Company and dated the Closing Date, ~~of an authorized officer of the Company in which such officer,~~ to the ~~best~~ effect that the signer of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state~~ the Pricing Free Writing Prospectus, the Final Prospectus and this Agreement and that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on at and as of the Closing Date with the same effect as if made on the Closing Date, (ii) the Company ~~has complied~~ has, in all material ~~respects~~ respects, complied with all the agreements and satisfied all the conditions on its part that are required by this Agreement to be performed or satisfied ~~hereunder~~ at or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, ~~and~~ threatened, (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to the attention of such ~~counsel’s attention to cause~~ officer that would lead such ~~counsel~~ officer to believe that any information provided by the ~~Registration Statement, when taken together with~~ Company to the ~~Ratings Issuer~~ Underwriters for use in any Free Writing Prospectus ~~(excluding any exhibits filed therewith), at~~ or 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or Final Prospectus contains any untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (~~it being understood that such counsel~~ v) subsequent to the respective dates as of which information is given in the Final Prospectus, there has not been ~~requested~~ any material adverse change in the general affairs, capitalization, financial condition or results of operations of the Company. (c) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp, counsel for the Company and the Seller, a favorable opinion, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters. (d) The Representative shall have received from Deloitte & Touche, certified public accountants, two letters, one dated the date hereof and ~~does not make any comment~~ one dated the date of the Pricing Free Writing Prospectus and satisfactory in ~~this paragraph with respect~~ form and substance to the ~~financial statements~~Representative and counsel for the Underwriters, ~~supporting schedules and other~~ to the effect that they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical ~~information contained~~ nature set forth in the ~~Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer~~ Pricing Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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~~ Final Prospectus under the captions “Summary of ~~America, assume the conformity of such laws with the laws of New York and~~ Prospectus Supplement—The Mortgage Loans,” “Risk Factors” (~~y) rely as to matters of fact,~~ to the extent ~~deemed proper~~ of information regarding the Mortgage Loans therein), “The Mortgage Pool”, “Yield on the Certificates” and ~~as stated therein, on certificates of responsible officers~~ “Description of the ~~Seller and~~ Certificates” agrees with the ~~Company and public officials (references to~~ records of the ~~Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto)~~Seller. (e) The ~~Representatives~~ Certificates shall have ~~received an opinion or opinions of McGuireWoods LLP~~been given the ratings set forth in Schedule I hereto by the Rating Agency. (f) The Representative shall have received, ~~Virginia~~ from counsel to for the ~~Seller and the Company~~Trustee, a favorable opinion, dated the Closing Date, and in form and substance ~~reasonably~~ satisfactory to the ~~Representatives~~ Representative and ~~their~~ its counsel, to the effect that the Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Trustee and constitutes the legal, valid and binding agreement of the Trustee, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights in general and by general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law, and as to such other matters as may be agreed upon by the Trustee and the Representative. (g) The Representative shall have received from the Seller, in form and substance satisfactory to counsel for the Underwriters: (i) ~~With respect to~~ An officer’s certificate stating that on the ~~perfection~~ Closing Date the representations and warranties of the ~~Company’s interest in~~ Seller under the ~~Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables~~ Mortgage Loan Purchase Agreement and the ~~Collateral Certificate~~ Assignment and ~~certain other matters relating to any applicable credit enhancement.~~Recognition Agreements will be true and correct and no event has occurred that would constitute a default thereunder; and (ii) ~~With respect to certain Virginia tax consequences~~ An officer’s certificate relating to the ~~issuance~~ Mortgage Loan Purchase Agreement, the Assignment and Recognition Agreements and the obligations of the ~~Notes~~Seller thereunder, as Seller or otherwise, together with copies of the certificate of incorporation and by-laws of the Seller and a certificate of good standing of the Seller under the laws of the State of New York; (h) The Representative shall have received from the Servicer, in form and substance satisfactory to counsel for the Underwriters: (i) An officer’s certificate stating that on the Closing Date the representations and warranties of the Servicer contained in the Pooling and Servicing Agreement will be true and correct and no event has occurred with respect to the Servicer that would constitute an Event of Default thereunder; and (ii) An officer’s certificate relating to the Pooling and Servicing Agreement and the obligations of the Servicer thereunder, as Servicer or otherwise, and attached thereto the Articles of Association of the Servicer, together with copies of the charter and by-laws of the Servicer and a certificate of good standing of the Servicer issued by the Office of the Comptroller of the Currency of the United States of America. (~~iii~~i) To The Representative shall have received from counsel to the Servicer, a favorable opinion, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters. (j) The Underwriters shall have received copies of any opinions of counsel to the Company, the Seller and the Servicer supplied to the Rating Agency or the Trustee relating to certain matters with respect to the Certificates. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by the reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (k) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to the Representative and counsel for the Underwriters, and the Representative and counsel for the Underwriters shall have received such other information, certificates and documents as they may reasonably request. (l) All documents required under the Mortgage Loan Purchase Agreement and the Assignment and Recognition Agreements have been provided to the appropriate parties. (m) The Representative shall have received, from counsel for the Paying Agent, a favorable opinion, dated the Closing Date, and in form and substance satisfactory to the Representative and its counsel, to the effect that the ~~Company~~ Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Paying Agent and constitutes the legal, valid and binding agreement of the Paying Agent, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights in general and by general principles of equity, regardless of whether such enforcement is considered in a ~~limited liability company duly organized~~ proceeding in equity or at law, and ~~in existence under~~ as to such other matters as may be agreed upon by the ~~laws of Virginia~~ Paying Agent and the ~~Company has,~~ Representative. (n) The Cap Contract shall have been delivered. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided in this Agreement, if the Company is in breach of any covenants or agreements contained herein or if any of the opinions and 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 counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Representative. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in the Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization ofwriting, or ~~filing with, any Virginia governmental agency~~ by telephone or ~~authority or any Virginia court is required on the part of the Seller under applicable Virginia~~ telegraph confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (Citigroup Mortgage Loan Trust 2006-He3), Underwriting Agreement (Citigroup Mortgage Loan Trust 2006-He1)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus, the Prospectus and all other Time of Sale Information shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus as of the Time of Sale, and ~~their~~ to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the ~~Receivables~~ Preliminary Prospectus and the ~~Collateral Certificate~~ Prospectus with respect to each such party with the requirements of Regulation AB and ~~certain other matters relating~~ that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to ~~any applicable credit enhancement~~state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With respect to certain Virginia tax consequences relating~~ The Underwriters shall have received from Sidley Austin LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the ~~issuance of the Notes~~Underwriters. (~~iii~~k) To The Underwriters shall have received from the ~~effect~~ Accountants, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) letters dated on or prior to the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (l) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Term Sheet (or such other FWP) by the rating agency or agencies indicated therein. (m) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (n) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (o) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (p) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (q) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (r) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (FIVE 2023-V1 Mortgage Trust), Underwriting Agreement (Benchmark 2020-B22 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Securities shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the ~~date hereof~~ Time of Sale and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) ~~The Representatives~~ If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have ~~received, with respect~~ been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company’s General Counsel shall have furnished to the ~~Company, a certificate~~Representatives an opinion, dated the Closing ~~Date, of an authorized officer of the Company in which such officer,~~ Date and addressed to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ Representatives to the effect that: (i) the ~~representations~~ Company and ~~warranties~~ each of its Material Subsidiaries has been duly incorporated or organized, as the case may be, and is validly existing as a corporation or limited liability company in good standing (as applicable) under the laws of the ~~Company~~ jurisdiction in ~~this Agreement are true~~ which it is chartered or organized, with corporate or limited liability company power and ~~correct~~ authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation or limited liability company and is in good standing (as applicable) under the laws of each jurisdiction which requires such qualification, or subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; (ii) the Company’s authorized equity capitalization is as set forth in the Prospectus; the Indenture and the Securities conform in all material respects on to the description thereof contained in the Prospectus; (iii) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the ~~Closing Date~~Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (iisubject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law) and entitled to the benefits of the Indenture; (iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in (A) the ~~Company has complied~~ Time of Sale Information under the headings “Description of Debt Securities” and “Description of the Notes”; (B) the Final Prospectus under the headings, “Description of Debt Securities”, “Description of the Notes” and “Underwriting” and (C) the Registration Statement in ~~all material respects with all agreements~~ Item 15, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and ~~satisfied all conditions on its part to be performed~~ fair summaries of such legal matters, agreements, documents or ~~satisfied hereunder at or before the Closing Date,~~ proceedings; (~~iii~~A) the Registration Statement has become effective under the Act; (B) any required filing of the Basic Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been ~~declared~~ made in the manner and ~~remains effective~~within the time period required by Rule 424(b); (C) any required filing of any Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433; (D) to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or ~~are threatened by the Commission~~threatened, and ~~(iv) since~~ the ~~Time of Sale~~Registration Statement, ~~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~~ any Preliminary Prospectus and the Final Prospectus (~~references~~ other than the financial statements and other financial information contained or incorporated by reference therein and the Form T-1, as to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such ~~officer,~~ counsel need express no opinion) comply as to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied form in all material respects with ~~all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before~~ the ~~Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ applicable requirements of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respectsAct, the ~~power to own its assets~~ Exchange Act and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture ~~Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940~~ Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) respective rules thereunder; and (~~vii~~E) ~~above). Based upon and subject to the foregoing,~~ nothing has come to the attention of such ~~counsel’s attention to cause~~ counsel that causes such counsel to believe that (1) on the Effective Date or the date the Registration ~~Statement~~Statement was last deemed amended, ~~when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith),~~ and at the ~~time it became effective~~Execution Time, the Registration Statement 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~~ ; (2) the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, Final Prospectus as of its date or ~~as of~~ on the ~~date of such opinion, contained~~ Closing Date included or ~~contains~~ includes any untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (3) the Time of Sale Information as of the Time of Sale or, as amended or supplemented (if applicable) as of the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the 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 this paragraph~~ with respect to clauses (1) through (3) above, in each case other than the financial ~~statements, supporting schedules~~ statements and other financial ~~or statistical~~ information contained or incorporated by reference therein and the Form T-1, as to which such counsel need express no opinion); (vi) this Agreement has been duly authorized, executed and delivered by the Company; (vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended; (viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under the securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained; (ix) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its Material Subsidiaries pursuant to, (i) the charter or by-laws of the Company or such subsidiaries, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or such subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or such subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiaries or any of its or their properties; (x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement, ; and (xi) the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or~~ statements in the Prospectus orunder the caption “Material U.S. Federal Income Tax Considerations”, ~~in the case~~ insofar as such statements constitute a summary of the ~~Preliminary Prospectus~~U.S. federal tax laws referred to therein, are accurate and fairly summarize in all material respects the ~~omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus)~~U.S. federal tax laws referred to therein. In rendering such opinion, such counsel may rely (xA) as to matters involving the application of laws ~~other than the laws~~ of any jurisdiction other than ~~New York and~~ the State of Delaware or the Federal laws of the United ~~States~~ States, to the extent they deem proper and specified in such opinion, upon the opinion of ~~America, assume~~ other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the ~~conformity of such laws with the laws of New York~~ Underwriters and (yB) ~~rely~~ as to matters of fact, to the extent ~~deemed proper and as stated therein~~they deem proper, on certificates of responsible officers of the ~~Seller and the~~ Company and its subsidiaries and public ~~officials~~ officials. With respect to opinion (~~references~~ iii) above, such opinion may be rendered by ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP with respect to the ~~Preliminary Prospectus or~~ laws of the State of New York. References to the Final Prospectus in this ~~clause~~ paragraph (b) include any ~~amendments or~~ supplements ~~thereto)~~thereto at the Closing Date. (ec) The Representatives shall have received an from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions of McGuireWoods LLP~~opinions, ~~Virginia counsel~~ dated the Closing Date and addressed to the ~~Seller~~ Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Information, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, ~~in form and substance reasonably satisfactory~~ to the ~~Representatives~~ effect that the signers of such certificate have reviewed the Registration Statement, the Time of Sale Information, the Final Prospectus, any supplements to the Final Prospectus and ~~their counsel~~this Agreement and that: (i) ~~With respect~~ the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.Closing Date; (ii) ~~With respect to certain Virginia tax consequences relating~~ to the ~~issuance~~ knowledge of such officers, no stop order suspending the effectiveness of the ~~Notes.~~Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and (iii) To since the ~~effect~~ date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Prospectus. (e) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, constituting statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters and (i) confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder; (ii) confirming that they have performed a review of the unaudited interim financial information of the Company ~~is a limited liability company duly organized~~ for the period ended on and as at the date of the unaudited financial statements of the Company included or incorporated by reference in ~~existence under~~ the ~~laws~~ Registration Statement, the Time of ~~Virginia~~ Sale Information and Final Prospectus, in accordance with Statement on Auditing Standards No. 100; and (iii) stating in effect, except as provided in Schedule I hereto, that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement, the Time of Sale Information and the ~~Company has,~~ Final Prospectus and reported on by them comply as to form in all material ~~respects~~respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the unaudited financial statements of the Company made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the period ended on and as at the date of the unaudited financial statements of the Company included or incorporated by reference in the Registration Statement, the ~~limited liability company power to own its assets~~ Time of Sale Information and ~~operate its business~~ Final Prospectus, as ~~described~~ indicated in their report which is incorporated by reference in the ~~Disclosure Materials, and had at all relevant times, and now has~~Registration Statement, the ~~limited liability company power~~ Time of Sale Information and the Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to ~~acquire~~ the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and ~~own~~ committees of the ~~Receivables~~ Company and its ~~interest in any Collateral Certificate transferred or proposed~~ subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to ~~be transferred~~ transactions and events subsequent to the ~~Issuer as described~~ date of the most recent unaudited financial statements of the Company included or incorporated by reference in the ~~Disclosure Materials.~~Registration Statement, the Time of Sale Information and the Final Prospectus, nothing came to their attention which caused them to believe that: (iv1) To any unaudited financial statements included or incorporated by reference in the ~~effect~~ Registration Statement, the Time of Sale Information and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q or in reports on Form 8-K under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus, there were any changes, at a specified date not more than three Business Days prior to the date of the letter, in the long-term debt of the Company ~~had at all relevant time,~~ and ~~now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval~~ its subsidiaries or ~~authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia~~ capital

Appears in 2 contracts

Sources: Underwriting Agreement (General Mills Inc), Underwriting Agreement (General Mills Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Securities shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer~~ Company and the ~~Seller~~ Adviser contained herein as of the ~~date hereof~~ Execution Time, the Time of Sale and the Closing Date, to the accuracy of the statements of the ~~Company,~~ Company or the ~~Issuer and the Seller~~ Adviser made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company,~~ Company or the ~~Issuer and the Seller in all material respects~~ Adviser of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent:~~(except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates): (a) The ~~Representatives~~ Registration Statement, including any amendments thereto prior to the Execution Time, has become effective, the Final Prospectus and any supplement, will be filed in the manner and within the time period required by Rule 497, and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened, and any request of the Commission for additional information (to be included in the Registration Statement or Final Prospectus or otherwise) shall have been complied with in all material respects. (b) The Company shall have requested and caused ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriters their opinion, dated the Closing Date and addressed to the Underwriters, substantially to the effect that: (i) Based solely on a review of good standing certificates (or other evidence described in the opinion) of the Secretary of State of California and the Secretary of State of the State of Texas, the Company is duly qualified to do business as a foreign corporation in the States of California and Texas and is in good standing under the laws of each of the States of California and Texas; (ii) The Company is duly registered with the Commission under the 1940 Act as a closed-end, non-diversified management investment company, and all required action has been taken by the Company under the Acts and the Rules and Regulations in connection with the issuance and sale of the Securities to make the public offering and consummate the sale of the Securities as contemplated by this Agreement; the provisions of the Charter and the Bylaws of the Company comply as to form in all material respects with the requirements of the 1940 Act and the 1940 Act Rules and Regulations; and the Company has not received any notice from the Commission pursuant to Section 8(e) of the 1940 Act with respect to the 1940 Act Notification or the Registration Statement; (iii) This Agreement has been delivered by the Company and complies with the provisions of the 1940 Act and the 1940 Act Rules and Regulations applicable to the Company~~, a certificate, dated the Closing Date, of an authorized officer~~ ; (iv) Each 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 Agreements complies in all material respects with all ~~agreements~~ applicable provisions of the 1940 Act, the Advisers Act, the 1940 Act Rules and ~~satisfied all conditions on~~ Regulations, and the Advisers Act Rules and Regulations; and each of the Company Agreements constitutes a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~part~~ terms, except as rights to indemnity and contribution may be ~~performed~~ limited by federal or ~~satisfied hereunder~~ state securities laws or principles of public policy and subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles, regardless whether enforcement is considered in a proceeding in equity or at law; (v) Neither the issuance and sale of the Securities, the execution, delivery or ~~before~~ performance of this Agreement or any of the Company Agreements by the Company, nor the consummation by the Company of the transactions herein or therein contemplated (i) to the knowledge of such counsel, conflicts or will conflict with or constitutes or will constitute a material breach of or a default under, any agreement, indenture, lease or other instrument to which the Company is a party or by which it or any of its properties may be bound, in each case, as such agreement, indenture, lease or other instrument has been amended through the Closing ~~Date~~Date and which has been filed as an exhibit to the Registration Statement, or (ii) violates or will violate any material statute, law, regulation or filing or judgment, injunction, order or decree applicable to the Company or any of its properties or (iii) to the knowledge of such counsel, will result in the creation or imposition of any material lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement or instrument to which it is a party or by which it may be bound or to which any of the property or assets of the Company is subject; (vi) To such counsel’s knowledge, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Disclosure Package and the Final Prospectus, and there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required by the Acts or the Rules and Regulations; and the statements included in the Final Prospectus under the captions “Tax Matters” insofar as they purport to constitute summaries of legal matters, agreements, documents or proceedings discussed therein, accurately and fairly summarize such legal matters, agreements, documents or proceedings described therein in all material respects; (vii) No consent, approval, authorization, filing with or order of any federal or California governmental agency or body or supervisory authority, or to our knowledge, any California or United States federal court, is required in connection with the transactions contemplated in this Agreement or the Company Agreements, other than (a) those that have been made or obtained under the Acts, (b) those under state securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Final Prospectus (as to which such counsel expresses no opinion) and (c) such other approvals (specified herein) as have been obtained; (viii) Except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding; (ix) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and (x) The Registration Statement has become effective under the 1933 Act (which opinion is based solely on telephonic advice received by such counsel from the Commission); any required filing of the Final Prospectus, and any supplements thereto, pursuant to Rule 497 have been ~~declared~~ made in the manner and ~~remains effective~~within the time period required by Rule 497; to our knowledge, based solely on telephonic advice received by such counsel from the Commission, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or ~~are~~ threatened by and the ~~Commission~~Registration Statement, the Disclosure Package and ~~(iv) since~~ the ~~Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary~~ Final Prospectus (~~references~~ other than the financial statements and other financial and statistical information contained therein, as to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such ~~officer,~~ counsel express no opinion) appear on their face to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and comply as ~~of the Closing Date, (ii) the Seller has complied~~ to form in all material respects with ~~all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before~~ the ~~Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ applicable requirements of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, Acts and the ~~Bank has, in all material respects, the power to own its assets~~ Rules and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase AgreementRegulations. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus and the Prospectus and have considered the matters required to be stated therein and the matters stated thereinthat, although ~~they are~~ such counsel has not independently ~~verifying~~ verified and is not passing upon and does not assume responsibility, explicitly or implicitly, for the accuracy, completeness or fairness of ~~such~~ the statements ~~(except as stated~~ contained in ~~paragraphs (vi) and (vii) 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, ~~when taken together with~~ the ~~Ratings Issuer Free Writing~~ Disclosure Package or the Final Prospectus (~~excluding any exhibits filed therewith~~except as to the extent expressly stated in the opinion of such counsel), at such counsel has no reason to believe (i) that on the ~~time it became effective,~~ Effective Date or the date the Registration Statement was last deemed amended the Registration Statement 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 (ii) that the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus,~~ Final Prospectus as of its date and on the ~~Time of Sale, contained~~ Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (iii) that the ~~Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ Disclosure Package as of the ~~date~~ Time of ~~such opinion, contained or contains~~ Sale included any untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary in order to make the statements therein, in the 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 ~~this paragraph with respect to~~ each case, other than the financial ~~statements, supporting schedules~~ statements and other financial ~~or statistical~~ information contained ~~in the Registration Statement~~therein, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, as to which ~~information shall of necessity appear only in the final Prospectus~~such counsel need express no opinion). In rendering such opinion, such counsel may rely (xA) as to matters involving the application of laws ~~other than the laws~~ of any jurisdiction other than ~~New York and~~ the State of California or the Federal laws of the United ~~States~~ States, to the extent they deem proper and specified in such opinion, upon the opinion of ~~America, assume~~ other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the ~~conformity of such laws with~~ Underwriters (which shall include as to matters involving the laws of ~~New York~~ the State of Maryland the opinion of ▇▇▇▇▇▇▇ LLP referred to in paragraph (c) of this Section 7) and (yB) ~~rely~~ as to matters of fact, to the extent ~~deemed proper and as stated therein~~they deem proper, on certificates of responsible officers of the ~~Seller and the~~ Company and public officials ~~(references~~ and, where appropriate, a review of the Registration Statement, the Disclosure Package, the Final Prospectus, the Charter and Bylaws. References to the ~~Preliminary~~ Final Prospectus or and the ~~Prospectus~~ Disclosure Package in this ~~clause~~ paragraph (b) shall also include any ~~amendments or~~ supplements ~~thereto)~~thereto at the Closing Date. (ec) ~~The Representatives~~ You shall have received on the Closing Date an opinion ~~or opinions~~ of ~~McGuireWoods~~ ▇▇▇▇▇▇▇ LLP, ~~Virginia~~ special Maryland counsel to ~~the Seller and~~ the Company, dated the Closing ~~Date~~Date and addressed to you, ~~in form and substance reasonably satisfactory~~ as Underwriters, substantially to the ~~Representatives and their counsel~~effect that: (i) ~~With respect to the perfection~~ The Company is a corporation duly incorporated and existing under and by virtue of the ~~Company’s interest in the Receivables, the perfection~~ laws of the ~~Master Trust Trustee’s interest~~ State of Maryland and is in good standing with the ~~Receivables~~ State Department of Assessments and ~~the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~Taxation of Maryland; (ii) ~~With respect~~ The Company has the corporate power to ~~certain Virginia tax consequences relating~~ own its properties and assets and to ~~the issuance of the Notes.~~conduct its business as a closed-end investment company; (iii) To The Company has the number of authorized shares of capital stock as set forth in the Final Prospectus under the captions “Capitalization” and “Description of Capital Stock — Capital Stock”; (iv) The authorized stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Final Prospectus under the caption “Description of Capital Stock”; (v) The shares of Common Stock issued and outstanding as of the date hereof have been duly authorized and are validly issued, fully paid and nonassessable; (vi) The sale and issuance of the Securities have been duly authorized and, when issued and delivered to and paid for by the Underwriters in accordance with this Agreement and the Resolutions, the Securities will be validly issued, fully paid and nonassessable; (vii) The Securities conform as to legal matters in all material respects to the statements concerning them contained in the Disclosure Package and in the Final Prospectus under the headings “Description of Capital Stock” and “Description of Mandatory Redeemable Preferred Shares”; (viii) There are no restrictions upon the transfer of any of the Securities pursuant to the Company’s Charter or Bylaws; (ix) The form of certificate representing shares of the Preferred Stock complies in all material respects with the applicable statutory requirements of the Maryland General Corporation Law (the “MGCL”) and with any applicable requirements of the Charter and the Bylaws; (x) The Securities are not subject to preemptive or other similar rights under the MGCL, the Charter or the Bylaws; (xi) The Company has corporate power to execute and deliver this Agreement and the Company Agreements and perform its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the Company Agreements by the Company have been duly authorized by all necessary corporate action of the Company. Each of this Agreement and the Company Agreements have been duly executed and, so far as is known to such counsel, delivered by the Company; (xii) The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not conflict with or constitute a breach of the Charter or the Bylaws, or any Maryland law or regulation, or, so far as is known to such counsel, any order of any Maryland governmental authority (other than any law, regulation or order in connection with the securities laws of the State of Maryland, as to which such counsel need not express an opinion); and (xiii) The statements in the Final Prospectus under the caption “Description of Capital Stock” and “Risk Factors — Risks Related to Our Business and Structure — Anti-Takeover Provisions,” insofar as such statements purport to summarize certain provisions of Maryland law or the Charter or the Bylaws, constitute a fair summary of such provisions and are accurate in all material respects. In rendering such opinion, ▇▇▇▇▇▇▇ LLP may rely, as to matters of fact, upon the representations and warranties made by the Company and the Adviser herein and on certificates and written statements of officers and employees of and accountants for the Company and the Adviser and of public officials. Except as otherwise specifically provided herein, when giving their opinions to their “knowledge”, ▇▇▇▇▇▇▇ LLP has relied solely upon an inquiry of the attorneys of that firm who have worked on matters for the Company, on certificates or written statements of officers of the Company and, where appropriate, a review of the Registration Statement, the Disclosure Package, the Final Prospectus, exhibits to the Registration Statement, the Charter and Bylaws. (d) You shall have received on the Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq., General Counsel for the Adviser, dated the Closing Date and addressed to you, as Underwriters, substantially to the effect ~~that the Company~~ that: (i) The Adviser has been duly organized and is validly existing as a limited liability company ~~duly organized and~~ in ~~existence~~ good standing under the laws of ~~Virginia and~~ the ~~Company has~~State of Delaware, ~~in all material respects, the~~ with limited liability company power and authority to ~~own~~ own, lease and operate its properties or assets and ~~operate~~ to conduct its business as described in the Registration Statement, the Disclosure ~~Materials~~Package and in the Final Prospectus, and ~~had at all relevant times~~is duly qualified to do business as a foreign limited liability company and is in good standing under the laws of each jurisdiction which requires such qualification; (ii) The Adviser is duly registered as an investment adviser under the Advisers Act, and ~~now has~~is not prohibited by the Advisers Act, the rules and regulations promulgated by the commission under the Advisers Act Rules and Regulations, the 1940 Act, or the 1940 Act Rules and Regulations from acting under the Advisory Agreement as contemplated by the Final Prospectus; (iii) The Adviser has full limited liability company power and authority to ~~acquire~~ enter into this Agreement and ~~own~~ the ~~Receivables~~ Advisory Agreement; and ~~its interest in any Collateral Certificate transferred or proposed to be transferred~~ this Agreement and the assignment to the Issuer as described in the Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Advisory Agreement to ~~which it is~~ the Adviser have been duly authorized, executed and delivered by the Adviser; this Agreement and the Advisory Agreement are each a ~~party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part~~ valid and legally binding agreement of the ~~Seller under applicable Virginia~~ Adviser, enforceable against the Adviser in accordance with its terms

Appears in 2 contracts

Sources: Underwriting Agreement (Kayne Anderson MLP Investment CO), Underwriting Agreement (Kayne Anderson MLP Investment CO)

Conditions to the Obligations of the Underwriters. The ~~obligations~~ obligation of the several Underwriters to purchase and pay for the Notes ~~will be~~ they have agreed to purchase hereunder on the Closing Date is subject to the accuracy of the representations and warranties ~~on the part~~ of the ~~Company, the Issuer~~ Company and the ~~Seller~~ Bank contained herein as of the date ~~hereof~~ of this Agreement, at [__:00 P./A.M.], New York City time, on [INSERT DATE] or such other time as agreed by the Bank and the Representatives (the “Time of Sale”) and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer~~ Company and the ~~Seller~~ Bank made in any certificates pursuant to the provisions ~~thereof~~hereof delivered prior to or concurrently with such purchase, to the performance by the ~~Company, the Issuer~~ Company and the ~~Seller in all material respects~~ Bank of their obligations ~~hereunder~~ hereunder, and to the following ~~additional conditions precedent~~further conditions: (a) ~~The Representatives shall~~ Each of the Underwriters, [COUNSEL], U.S. counsel for the Company and the Bank, and [COUNSEL], U.S. counsel for the Underwriters, have ~~received,~~ completed their respective diligence investigations in accordance with ~~respect~~ procedures customary for a transaction such as the offering of the Notes and the Guarantees pursuant to the ~~Company, a certificate, dated the Closing Date,~~ terms and conditions 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~~ this Agreement. (ib) ~~the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of~~ At the Closing Date, (i) since the date of the latest balance sheet included in the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change (other than as set forth in or contemplated in the Time of Sale Prospectus or the Prospectus) in the financial condition or in the earnings, affairs or business prospects of the Bank and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business; (ii) each of the Company ~~has~~ and the Bank shall have complied ~~in all material respects~~ with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date, ; and (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the ~~Seller~~ Company and the Bank set forth in ~~this Agreement are true and correct~~ Section 1 shall be accurate in all material respects on as though expressly made at and as of the Closing Date. At the Closing Date, the Underwriters shall have received a certificate, dated as of the Closing Date, from each of the Bank and of the Company signed by the principal financial or accounting officer of the Bank and a director of the Company, respectively, certifying, with respect to the Bank, the matters set forth in (i), (ii) ~~the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date,~~ and (iii) ~~since~~ of this Section 5(b) and, with respect to the ~~Time of Sale~~Company, ~~there has been no material adverse change in~~ the ~~condition (financial or otherwise) of the Seller’s credit card business, except as~~ matters set forth in ~~or contemplated in the Preliminary Prospectus~~ (~~references to the Preliminary Prospectus in~~ ii) and (iii) of this ~~clause include any amendments and supplements thereto~~Section 5(b). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated At the Closing Date, ~~in form and substance reasonably satisfactory~~ the Underwriters shall have received a signed opinion, dated as of the Closing Date, of [COUNSEL], Spanish counsel to the ~~Representatives~~ Company and ~~their counsel~~the Bank, substantially in the form set forth in Exhibit A. (d) At the Closing Date, the Underwriters shall have received a signed opinion, dated as of the Closing Date, of [COUNSEL], U.S. counsel to the Company and the Bank, substantially in the form set forth in Exhibit B. (e) At the Closing Date, the Underwriters shall have received a signed opinion, dated as of the Closing Date, of [COUNSEL], Spanish counsel to the Underwriters, substantially in the form set forth in Exhibit C. (f) At the Closing Date, the Underwriters shall have received a signed opinion, dated as of the Closing Date, of [COUNSEL], U.S. counsel to the Underwriters, as to such matters as the Underwriters may reasonably request. (g) On the date hereof, the Underwriters shall have received from [AUDITOR] a letter dated such date, to the effect ~~that:~~ that (i) ~~Capital One~~ they are independent accountants with respect to the Bank ~~(USA), National Association is a national banking association under~~ and its subsidiaries within the ~~laws~~ meaning of the ~~United States,~~ Securities Act; (ii) it is their opinion that the Financial Statements included or incorporated by reference in the Time of Sale Prospectus and the ~~Bank has,~~ Prospectus and covered by their opinions therein comply as to form in all material respects, except as stated in such report, with the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each applicable accounting requirements of the ~~Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein.~~ Securities Act for foreign private issuers; (iii) ~~Each~~ nothing has come to their attention that any Financial Statements included or incorporated by reference in the Time of Sale Prospectus and the Prospectus and not covered by their opinions do not comply as to form in all material respects with the accounting requirements of the ~~Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller.~~ Securities Act for foreign private issuers; (iv) ~~Each~~ based upon limited procedures set forth in detail in such letter, nothing has come to their attention which causes them to believe that at a specified date not more than three business days prior to the date of such letter, there was any decrease in the capital stock, any increase in long-term debt or any decreases in consolidated net current assets or shareholders’ equity as compared with the amounts shown in the most recent consolidated balance sheet included or incorporated by reference in the Time of Sale Prospectus and the Prospectus, or during the period from the date of such balance sheet to a specified date not more than three days prior to the date of such letter, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net income or consolidated net income of the ~~Program Agreements to~~ Bank and its subsidiaries, except in all cases for changes, increases or decreases which the ~~Company is a party has been duly authorized by all necessary limited liability company action on~~ Time of Sale Prospectus and the ~~part of the Company~~ Prospectus disclose have occurred or may occur; 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. (v) ~~No consent~~in addition to the examination referred to in their opinions and the limited procedures referred to in clause (iv) above, ~~approval~~they have carried out certain specified procedures, ~~authorization or order of~~not constituting an audit, ~~or filing with~~with respect to certain amounts, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth percentages and financial information which are included in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part Time of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller Sale Prospectus and the ~~Company, as applicable, of the Program Agreements to~~ Prospectus and which ~~it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer~~ are specified by the ~~Seller of~~ Underwriters, and have found such amounts, percentages and financial information to be in agreement with the ~~Receivables~~ relevant accounting, financial and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents other records of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result and its subsidiaries identified in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated letter. At the Closing Date, ~~in form and substance reasonably satisfactory to~~ the ~~Representatives and their counsel~~Underwriters shall have received a letter from [AUDITOR], ~~to the effect that: (i) Each~~ dated as of the ~~Pooling and Servicing Agreement~~Closing Date, confirming the ~~Asset Representations Review Agreement,~~ information given in their letter dated the ~~Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation~~ date of the ~~Company and the Seller under the laws~~ Time of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Sale Prospectus and the Prospectus. (vih) ~~The statements~~ At the Closing Date, U.S. counsel [and Spanish counsel] to the Bank and the Company, and U.S. counsel and Spanish counsel for the Underwriters, shall have been furnished with all such documents, certificates, resolutions and opinions as each may reasonably request for the purpose of enabling them to pass upon the issuance and sale of the Notes and the Guarantees as contemplated in this Agreement and the matters referred to in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequencesopinions required by Sections 5(d), (e) and (f), and in order to evidence the ~~extent they constitute matters~~ performance of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects. (vii) The statements in the Preliminary Prospectus and the Prospectus under the headings “Certain Legal Aspects any of the ~~Receivables” and “Benefit Plan Investors,” to the extent they constitute matters~~ covenants of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the ~~Issuer and their accountants~~Bank, ~~and representatives~~ or the fulfillment of any of the ~~Underwriters~~ conditions herein contained. If any of the conditions specified in this Section 5 shall not have been fulfilled when and ~~their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus and the Prospectus and have considered the matters~~ as required by this Agreement to be ~~stated therein and~~ fulfilled, this Agreement may be terminated by the matters stated therein, although they are not independently verifying the accuracy, completeness or fairness of such statements (except as stated in paragraphs (vi) and (vii) above). Based upon and subject Underwriters on notice to the foregoing, nothing has come to such counsel’s attention to cause such counsel to believe that the Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and ~~public officials (references~~ the Bank at any time at or prior to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, as the case may be, and such termination shall be without liability of any party to any other party except as provided in ~~form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables~~Section 6 herein. Notwithstanding any such termination, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of ~~each Program Agreement to which it is a party~~Sections 7, 8, 9, 13 and 14 herein shall remain in effect. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (Santander US Debt, S.A. Unipersonal), Underwriting Agreement (Santander US Debt, S.A. Unipersonal)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus and the Prospectus and all other Time of Sale Information shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus, as of the Time of Sale, and to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and ~~their counsel:~~the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (j) The Underwriters shall have received from KPMG LLP, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) ~~With respect to certain Virginia tax consequences relating~~ letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to the ~~issuance of~~ Underwriters and counsel for the ~~Notes~~Underwriters. (~~iii~~k) To The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the ~~effect~~ Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (n) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (o) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Offered Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (CFCRE 2017-C8 Mortgage Trust), Underwriting Agreement (CFCRE 2016-C3 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Registered Certificates shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date ~~hereof~~ hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date and as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have ~~received,~~ been issued and not withdrawn and no proceedings for that purpose shall have been instituted or threatened; and the Final Prospectus shall have been filed or transmitted for filing with ~~respect~~ the Commission in accordance with Rule 424 under the ▇▇▇▇ ▇▇▇. (b) The Company shall have delivered to you a certificate of the Company, signed by the President or a ~~certificate,~~ vice president or an assistant vice president of the Company and dated the Closing Date, ~~of an authorized officer of the Company in which such officer,~~ to the ~~best~~ effect that the signer of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state~~ the Pricing Free Writing Prospectus, the Final Prospectus and this Agreement and that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on at and as of the Closing Date with the same effect as if made on the Closing Date, (ii) the Company ~~has complied~~ has, in all material ~~respects~~ respects, complied with all the agreements and satisfied all the conditions on its part that are required by this Agreement to be performed or satisfied ~~hereunder~~ at or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, ~~and~~ threatened, (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to the attention of such ~~counsel’s attention to cause~~ officer that would lead such ~~counsel~~ officer to believe that any information provided by the ~~Registration Statement, when taken together with~~ Company to the ~~Ratings Issuer~~ Underwriters for use in any Free Writing Prospectus ~~(excluding any exhibits filed therewith), at~~ or 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or Final Prospectus contains any untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (~~it being understood that such counsel~~ v) subsequent to the respective dates as of which information is given in the Final Prospectus, there has not been ~~requested~~ any material adverse change in the general affairs, capitalization, financial condition or results of operations of the Company. (c) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp, counsel for the Company and the Seller, a favorable opinion, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters. (d) The Representative shall have received from Deloitte & Touche, certified public accountants, two letters, one dated the date hereof and ~~does not make any comment~~ one dated the date of the Pricing Free Writing Prospectus and satisfactory in ~~this paragraph with respect~~ form and substance to the ~~financial statements~~Representative and counsel for the Underwriters, ~~supporting schedules and other~~ to the effect that they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical ~~information contained~~ nature set forth in the ~~Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer~~ Pricing Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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~~ Final Prospectus under the captions “Summary of ~~America, assume the conformity of such laws with the laws of New York and~~ Prospectus Supplement—The Mortgage Loans,” “Risk Factors” (~~y) rely as to matters of fact,~~ to the extent ~~deemed proper~~ of information regarding the Mortgage Loans therein), “The Mortgage Pool”, “Yield on the Certificates” and ~~as stated therein, on certificates of responsible officers~~ “Description of the ~~Seller and~~ Certificates” agrees with the ~~Company and public officials (references to~~ records of the ~~Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto)~~Seller. (e) The ~~Representatives~~ Certificates shall have ~~received an opinion or opinions of McGuireWoods LLP~~been given the ratings set forth in Schedule I hereto by the Rating Agency. (f) The Representative shall have received, ~~Virginia~~ from counsel to for the ~~Seller and the Company~~Trustee, a favorable opinion, dated the Closing Date, and in form and substance ~~reasonably~~ satisfactory to the ~~Representatives~~ Representative and ~~their~~ its counsel, to the effect that the Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Trustee and constitutes the legal, valid and binding agreement of the Trustee, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights in general and by general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law, and as to such other matters as may be agreed upon by the Trustee and the Representative. (g) The Representative shall have received from the Seller, in form and substance satisfactory to counsel for the Underwriters: (i) ~~With respect to~~ An officer’s certificate stating that on the ~~perfection~~ Closing Date the representations and warranties of the ~~Company’s interest in~~ Seller under the ~~Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables~~ Assignment and ~~the Collateral Certificate~~ Recognition Agreement will be true and ~~certain other matters relating to any applicable credit enhancement.~~correct and no event has occurred that would constitute a default thereunder; and (ii) ~~With respect to certain Virginia tax consequences~~ An officer’s certificate relating to the ~~issuance~~ Assignment and Recognition Agreement and the obligations of the ~~Notes~~Seller thereunder, as Seller or otherwise, together with copies of the certificate of incorporation and by-laws of the Seller and a certificate of good standing of the Seller under the laws of the State of New York; (h) The Representative shall have received from the Servicer, in form and substance satisfactory to counsel for the Underwriters: (i) An officer’s certificate stating that on the Closing Date the representations and warranties of the Servicer contained in the Pooling and Servicing Agreement will be true and correct and no event has occurred with respect to the Servicer that would constitute an Event of Default thereunder; and (ii) An officer’s certificate relating to the Pooling and Servicing Agreement and the obligations of the Servicer thereunder, as Servicer or otherwise, and attached thereto the Articles of Association of the Servicer, together with copies of the charter and by-laws of the Servicer and a certificate of good standing of the Servicer issued by the Office of the Comptroller of the Currency of the United States of America. (~~iii~~i) To The Representative shall have received from counsel to the Servicer, a favorable opinion, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriters. (j) The Underwriters shall have received copies of any opinions of counsel to the Company, the Seller and the Servicer supplied to the Rating Agency or the Trustee relating to certain matters with respect to the Certificates. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by the reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (k) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to the Representative and counsel for the Underwriters, and the Representative and counsel for the Underwriters shall have received such other information, certificates and documents as they may reasonably request. (l) All documents required under the Assignment and Recognition Agreement have been provided to the appropriate parties. (m) The Representative shall have received, from counsel for the Paying Agent, a favorable opinion, dated the Closing Date, and in form and substance satisfactory to the Representative and its counsel, to the effect that the ~~Company~~ Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Paying Agent and constitutes the legal, valid and binding agreement of the Paying Agent, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights in general and by general principles of equity, regardless of whether such enforcement is considered in a ~~limited liability company duly organized~~ proceeding in equity or at law, and ~~in existence under~~ as to such other matters as may be agreed upon by the ~~laws of Virginia~~ Paying Agent and the ~~Company has,~~ Representative. (n) The Cap Contract shall have been delivered. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided in this Agreement, if the Company is in breach of any covenants or agreements contained herein or if any of the opinions and 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 counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Representative. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in the Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization ofwriting, or ~~filing with, any Virginia governmental agency~~ by telephone or ~~authority or any Virginia court is required on the part of the Seller under applicable Virginia~~ telegraph confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe1, Asset-Backed Pass-Through Certificates, Series 2006-Wfhe1), Underwriting Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe4)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus, the Prospectus and all other Time of Sale Information shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Sidley Austin LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Sidley Austin LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus as of the Time of Sale, and ~~their~~ to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the ~~Receivables~~ Preliminary Prospectus and the ~~Collateral Certificate~~ Prospectus with respect to each such party with the requirements of Regulation AB and ~~certain other matters relating~~ that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to ~~any applicable credit enhancement~~state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With respect to certain Virginia tax consequences relating~~ The Underwriters shall have received from Sidley Austin LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the ~~issuance of the Notes~~Underwriters. (~~iii~~k) To The Underwriters shall have received from the ~~effect~~ Accountants, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (l) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Term Sheet (or such other FWP) by the rating agency or agencies indicated therein. (m) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (n) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (o) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (p) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (q) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (r) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (COMM 2016-Dc2 Mortgage Trust), Underwriting Agreement (COMM 2016-Dc2 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus and the Prospectus and all other Time of Sale Information shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus, as of the Time of Sale, and to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and ~~their counsel:~~the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from [________], special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (j) The Underwriters shall have received from [________], certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) ~~With respect to certain Virginia tax consequences relating~~ letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to the ~~issuance of~~ Underwriters and counsel for the ~~Notes~~Underwriters. (~~iii~~k) To The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the ~~effect~~ Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (n) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (o) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 2 contracts

Sources: Underwriting Agreement (Ladder Capital Commercial Mortgage Securities LLC), Underwriting Agreement (Deutsche Mortgage & Asset Receiving Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the Company, the Issuer and the Seller herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company, the Issuer and the Seller made pursuant to the provisions thereof, to the performance by the Company, the Issuer and the Seller in all material respects of their obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to the Company, a certificate, dated the Closing Date, of an authorized officer of the Company in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared ~~and remains~~ effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general ~~counsel, chief~~ counsel ~~for transactions,~~ or ~~senior~~ associate general counsel of Capital One Bank (USA), National ~~Association,~~ Association or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association has been duly incorporated and is a national banking association under the laws of the United States, and the Bank has, in all material respects, the corporate power to own its assets and operate its business as described in the ~~Disclosure Materials~~Preliminary Prospectus and the Prospectus, and the Bank had at all relevant times and now has, the corporate power 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 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 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 Preliminary Prospectus and the Prospectus. (iii) The Seller has the corporate power to execute and deliver ~~each of~~ the ~~Program Agreements to which it is a party~~Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and to consummate the transactions set forth herein and therein. (~~iii~~iv) The Company has the limited liability company power to execute and deliver the Receivables Purchase Agreement, 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 set forth herein and therein. (v) Each of this Agreement, the ~~Program Agreements to which~~ applicable Terms Agreement, the ~~Seller is a party~~ Pooling and Servicing Agreement and the Receivables Purchase Agreement has been duly authorized by all necessary corporate action on the part of the Seller and has been duly executed and delivered by the Seller. (ivvi) Each of this Agreement, the ~~Program Agreements to which~~ applicable Terms Agreement, the ~~Company is a party~~ Pooling and Servicing Agreement, the Receivables Purchase Agreement, 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. (vvii) No consent, approval, authorization or order of, or filing with, any ~~United States~~ Virginia governmental agency or authority or any ~~United States federal~~ Virginia court is required on the part of the Seller under ~~United States federal~~ applicable Virginia law for the consummation by the Seller of the transactions set forth in this Agreement, the ~~Program Agreements to which it is a party~~applicable Terms Agreement, the Receivables Purchase Agreement or the Pooling and Servicing Agreement, 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 Agreement or the Pooling and Servicing Agreement. (viviii) No consent, approval, authorization or order of, or filing with, any ~~United States~~ Virginia governmental agency or authority or any ~~United States federal~~ Virginia court is required on the part of the Company under ~~United States federal~~ applicable Virginia limited liability company or Virginia law for the consummation by the Company of the transactions set forth in this Agreement, the ~~Program Agreements to which it is a party~~applicable Terms Agreement, the Receivables Purchase Agreement, 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. (~~vii~~ix) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement or the Pooling and Servicing Agreement, 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 Agreement or the Pooling and Servicing Agreement. (x) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement, 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 and delivery by each of the Seller and the ~~Company, as applicable,~~ Company of the ~~Program~~ Agreements to which it is a ~~party,~~ party or the performance by each of the Seller and the Company of its obligations ~~thereunder~~under the Agreements to which it is a party, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to Virginia limited liability company or other ▇▇▇▇▇▇▇▇ ▇▇▇▇ or United States federal law, of any Virginia or United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (~~viii~~xii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of this Agreement, the ~~Program Agreements~~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 or the consummation of any of the transactions set forth by this Agreement, the ~~Program Agreements~~applicable Terms Agreement, the 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 ~~Program Agreements~~applicable Terms Agreement, the 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 Preliminary Prospectus or the Prospectus under the headings ~~“Prospectus~~ “ Summary of Terms – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion ~~or opinions~~ of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ~~and~~ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing ~~Agreement, the Asset Representations Review Agreement, the Transfer~~ Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture ~~Act~~Act of 1939, as amended, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the ~~Asset Representations Review Agreement, the~~ Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the ~~Preliminary Prospectus~~ Registration Statement, in the form in which it became effective, and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the ~~headings~~ heading “Federal Income Tax Consequences” and the summary thereof under the heading “ ~~Prospectus~~ Summary of Terms – Federal Income Tax ~~Consequences”~~ Consequences “ (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary ~~Prospectus, the Ratings Issuer Free Writing~~ Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement (excluding any exhibits filed therewith), at 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 Preliminary ~~Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus,~~ Prospectus as of the Time of ~~Sale,~~ Sale contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the ~~Prospectus, when taken together with the Ratings Issuer Free Writing~~ Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 ~~this paragraph~~ such opinion with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary ~~Prospectus, when taken together with the Ratings Issuer Free Writing~~ Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia Prospectu

Appears in 2 contracts

Sources: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Master Trust)

Conditions to the Obligations of the Underwriters. The ~~obligations~~ Underwriters hereby enter into this Bond Purchase Agreement in reliance upon the representations and warranties of the ~~Underwriters~~ Authority and the City contained herein and the representations and warranties to ~~purchase~~ be contained in the documents and instruments to be delivered on the Closing Date and upon the performance by the Authority, the City, and the Trustee of their respective obligations both on and as of the date hereof. Accordingly, the Underwriters’ obligations under this Bond Purchase Agreement to purchase, to accept delivery of and to pay for the ~~Notes will~~ Bonds on the Closing Date shall be ~~subject~~ subject, at the option of the Underwriters, to the accuracy in all material respects of the representations and warranties ~~on the part~~ of the ~~Company, the Issuer~~ Authority and the ~~Seller~~ City contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the ~~Company~~officers and other officials of the Authority, the ~~Issuer~~ City and the ~~Seller~~ Trustee made in any certificate or document furnished pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company~~Authority, the ~~Issuer~~ City, and the ~~Seller in all material respects~~ Trustee of their respective obligations to be performed hereunder and under the Bonds, the Legal Documents and the City’s Legal Documents at or prior to the date hereof and at or prior to the Closing Date, and also shall be subject to the following additional ~~conditions precedent~~conditions: (a) ~~The Representatives~~ on the Closing Date, the Legal Documents and the City’s Legal Documents shall have ~~received~~been duly authorized, executed and delivered by the Authority and by the City where each is a party, all in substantially the forms heretofore submitted to the Representative, with ~~respect~~ only such changes as shall have been reasonably agreed to in writing by the Representative or accepted by the Representative as evidenced by its acceptance of delivery of the Bonds, and shall be in full force and effect; and there shall be in full force and effect such resolutions and ordinances of the Board of Commissioners of the Authority and the City Council as, in the opinion of Bond Counsel, shall be necessary or appropriate in connection with the transactions contemplated hereby; (b) on the Closing Date, all necessary action of the Authority and the City relating to the ~~Company~~issuance and sale of the Bonds will have been taken and will be in full force and effect and will not have been amended, modified or supplemented; (c) on or prior to the Closing Date, the Underwriters shall have received the following documents, in each case reasonably satisfactory in form and substance to the Underwriters: (i) one copy of each of the Legal Documents and the City’s Legal Documents, each duly executed and delivered by the respective parties thereto; (ii) the approving opinion, dated the Closing Date and addressed to the Authority and the City, of Bond Counsel in substantially the form of Appendix D to the Official Statement, and a ~~certificate~~letter of such counsel, dated the Closing Date, ~~of an authorized officer of the Company in which such officer,~~ and addressed 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 and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, Underwriters to the effect ~~that: (i) Capital One Bank (USA), National Association is a national banking association under~~ that such opinion may be relied upon by the ~~laws of~~ Underwriters to the ~~United States, and the Bank has, in all material respects, the power~~ same extent as if such opinion were addressed to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein.them; (iii) ~~Each~~ a supplemental opinion or opinions of Bond Counsel addressed to the ~~Program Agreements to which~~ Underwriters, in substantially the ~~Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller.~~form attached hereto as Appendix A; (iv) ~~Each of the Program Agreements to which the Company is~~ a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions letter of ▇▇▇▇▇▇▇▇▇ ~~and~~ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ~~LLP~~& ▇▇▇▇▇, ~~special counsel for~~ a Professional Corporation (“Disclosure Counsel”), dated the ~~Company~~ date of the Closing, addressed to the Authority and the ~~Seller~~City, with a reliance letter addressed to the Underwriters, substantially in the form attached hereto as Appendix B; (v) an opinion of , counsel to the Underwriters, dated the Closing Date, ~~in form~~ and ~~substance reasonably satisfactory~~ addressed to the ~~Representatives and their counsel~~Underwriters, substantially to the effect that: : (ia) ~~Each of the Pooling~~ based upon such firm’s participation, and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller in accordance with its terms. (ii) The sale and delivery of the Notes information disclosed to such firm in the ~~manner contemplated by this Agreement and the Pooling and Servicing Agreement do not require (A) the qualification~~ course of the Pooling and Servicing Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives representation of the Underwriters ~~and their~~ as counsel ~~concerning~~ to the ~~Registration Statement~~Underwriters, no facts came to the ~~Preliminary Prospectus,~~ attention of the Ratings Issuer Free Writing Prospectus 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 attorneys of such ~~statements (except as stated~~ firm rendering legal services in ~~paragraphs (vi) and (vii) above). Based upon and subject to~~ connection with this matter that caused the ~~foregoing, nothing has come to~~ attorney of such ~~counsel’s attention to cause such counsel~~ firm to believe that the ~~Registration~~ Official Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of ~~such opinion~~the Official Statement and as of the date of the Closing Date (except for CUSIP numbers; financial statements and the Comprehensive Annual Financial Report of the City for the fiscal year ended June 30, 2013; financial, demographic, statistical and economic data and projections; assumptions; and information relating to the book-entry-only system, including information in APPENDIX E—“DTC and the Book-Entry-Only System”, which are not addressed in the letter), contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia misleading;

Appears in 2 contracts

Sources: Bond Purchase Agreement, Bond Purchase Agreement

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Securities shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the ~~date hereof~~ Time of Sale and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) ~~The Representatives~~ If filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have ~~received, with respect~~ been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company’s General Counsel shall have furnished to the ~~Company, a certificate~~Representatives an opinion, dated the Closing ~~Date, of an authorized officer of the Company in which such officer,~~ Date and addressed to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ Representatives to the effect that: (i) the ~~representations~~ Company and ~~warranties~~ each of its Material Subsidiaries has been duly incorporated or organized, as the case may be, and is validly existing as a corporation or limited liability company in good standing (as applicable) under the laws of the ~~Company~~ jurisdiction in ~~this Agreement are true~~ which it is chartered or organized, with corporate or limited liability company power and ~~correct~~ authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation or limited liability company and is in good standing (as applicable) under the laws of each jurisdiction which requires such qualification, or subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; (ii) the Company’s authorized equity capitalization is as set forth in the Prospectus; the Indenture and the Securities conform in all material respects on to the description thereof contained in the Prospectus; (iii) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the ~~Closing Date~~Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (iisubject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law) and entitled to the benefits of the Indenture; (iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in (A) the ~~Company has complied~~ Time of Sale Information under the headings “Description of Debt Securities” and “Description of the Notes”; (B) the Final Prospectus under the headings, “Description of Debt Securities”, “Description of the Notes” and “Underwriting” and (C) the Registration Statement in ~~all material respects with all agreements~~ Item 15, in each case insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and ~~satisfied all conditions on its part to be performed~~ fair summaries of such legal matters, agreements, documents or ~~satisfied hereunder at or before the Closing Date,~~ proceedings; (~~iii~~A) the Registration Statement has become effective under the Act; (B) any required filing of the Basic Prospectus, any Preliminary Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been ~~declared~~ made in the manner and ~~remains effective~~within the time period required by Rule 424(b); (C) any required filing of any Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433; (D) to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or ~~are threatened by the Commission~~threatened, and ~~(iv) since~~ the ~~Time of Sale~~Registration Statement, ~~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~~ any Preliminary Prospectus and the Final Prospectus (~~references~~ other than the financial statements and other financial information contained or incorporated by reference therein and the Form T-1, as to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such ~~officer,~~ counsel need express no opinion) comply as to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied form in all material respects with ~~all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before~~ the ~~Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ applicable requirements of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respectsAct, the ~~power to own its assets~~ Exchange Act and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture ~~Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940~~ Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) respective rules thereunder; and (~~vii~~E) ~~above). Based upon and subject to the foregoing,~~ nothing has come to the attention of such ~~counsel’s attention to cause~~ counsel that causes such counsel to believe that (1) on the Effective Date or the date the Registration ~~Statement~~Statement was last deemed amended, ~~when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith),~~ and at the ~~time it became effective~~Execution Time, the Registration Statement 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~~ ; (2) the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, Final Prospectus as of its date or ~~as of~~ on the ~~date of such opinion, contained~~ Closing Date included or ~~contains~~ includes any untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (3) the Time of Sale Information as of the Time of Sale or, as amended or supplemented (if applicable) as of the Closing Date, included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the 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 this paragraph~~ with respect to clauses (1) through (3) above, in each case other than the financial ~~statements, supporting schedules~~ statements and other financial ~~or statistical~~ information contained or incorporated by reference therein and the Form T-1, as to which such counsel need express no opinion); (vi) this Agreement has been duly authorized, executed and delivered by the Company; (vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended; (viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and the Trust Indenture Act and such as may be required under the securities or blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained; (ix) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated will conflict with, result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its Material Subsidiaries pursuant to, (i) the charter or by-laws of the Company or such subsidiaries, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or such subsidiaries is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or such subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or such subsidiaries or any of its or their properties; (x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement, ; and (xi) the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or~~ statements in the Prospectus orunder the caption “Material United States Federal Tax Considerations”, ~~in the case~~ insofar as such statements constitute a summary of the ~~Preliminary Prospectus~~United States federal tax laws referred to therein, are accurate and fairly summarize in all material respects the ~~omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus)~~U.S. federal tax laws referred to therein. In rendering such opinion, such counsel may rely (xA) as to matters involving the application of laws ~~other than the laws~~ of any jurisdiction other than ~~New York and~~ the State of Delaware or the Federal laws of the United ~~States~~ States, to the extent they deem proper and specified in such opinion, upon the opinion of ~~America, assume~~ other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the ~~conformity of such laws with the laws of New York~~ Underwriters and (yB) ~~rely~~ as to matters of fact, to the extent ~~deemed proper and as stated therein~~they deem proper, on certificates of responsible officers of the ~~Seller and the~~ Company and its subsidiaries and public ~~officials~~ officials. With respect to opinion (~~references~~ iii) above, such opinion may be rendered by D▇▇▇▇▇ & W▇▇▇▇▇▇ LLP with respect to the ~~Preliminary Prospectus or~~ laws of the State of New York. References to the Final Prospectus in this ~~clause~~ paragraph (b) include any ~~amendments or~~ supplements ~~thereto)~~thereto at the Closing Date. (ec) The Representatives shall have received an from D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or ~~opinions of McGuireWoods LLP~~opinions, ~~Virginia counsel~~ dated the Closing Date and addressed to the ~~Seller~~ Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Time of Sale Information, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the President or any Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, ~~in form and substance reasonably satisfactory~~ to the ~~Representatives~~ effect that the signers of such certificate have reviewed the Registration Statement, the Time of Sale Information, the Final Prospectus, any supplements to the Final Prospectus and ~~their counsel~~this Agreement and that: (i) ~~With respect~~ the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.Closing Date; (ii) ~~With respect to certain Virginia tax consequences relating~~ to the ~~issuance~~ knowledge of such officers, no stop order suspending the effectiveness of the ~~Notes.~~Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and (iii) To since the ~~effect~~ date of the most recent financial statements included or incorporated by reference in the Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Prospectus. (e) The Company shall have requested and caused KPMG LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, constituting statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters and (i) confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder; (ii) confirming that they have performed a review of the unaudited interim financial information of the Company ~~is a limited liability company duly organized~~ for the period ended on and as at the date of the unaudited financial statements of the Company included or incorporated by reference in ~~existence under~~ the ~~laws~~ Registration Statement, the Time of ~~Virginia~~ Sale Information and Final Prospectus, in accordance with Statement on Auditing Standards No. 100; and (iii) stating in effect, except as provided in Schedule I hereto, that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement, the Time of Sale Information and the ~~Company has,~~ Final Prospectus and reported on by them comply as to form in all material ~~respects~~respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the unaudited financial statements of the Company made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the period ended on and as at the date of the unaudited financial statements of the Company included or incorporated by reference in the Registration Statement, the ~~limited liability company power to own its assets~~ Time of Sale Information and ~~operate its business~~ Final Prospectus, as ~~described~~ indicated in their report which is incorporated by reference in the ~~Disclosure Materials, and had at all relevant times, and now has~~Registration Statement, the ~~limited liability company power~~ Time of Sale Information and the Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to ~~acquire~~ the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and ~~own~~ committees of the ~~Receivables~~ Company and its ~~interest in any Collateral Certificate transferred or proposed~~ subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to ~~be transferred~~ transactions and events subsequent to the ~~Issuer as described~~ date of the most recent unaudited financial statements of the Company included or incorporated by reference in the ~~Disclosure Materials.~~Registration Statement, the Time of Sale Information and the Final Prospectus, nothing came to their attention which caused them to believe that: (iv1) To any unaudited financial statements included or incorporated by reference in the ~~effect~~ Registration Statement, the Time of Sale Information and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q or in reports on Form 8-K under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement, the Time of Sale Information and the Final Prospectus, there were any changes, at a specified date not more than three Business Days prior to the date of the letter, in the long-term debt of the Company ~~had at all relevant time,~~ and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia its subsidiaries

Appears in 1 contract

Sources: Underwriting Agreement (General Mills Inc)

Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters hereunder to purchase ~~and pay for~~ the ~~Notes will~~ Certificates shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date ~~hereof~~ hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date, as of the date the Prospectus Supplement or any supplement thereto is filed with the Commission prior to the Closing Date and as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates delivered pursuant to the provisions ~~thereof~~hereof, to the performance ~~by the Company, the Issuer and the Seller~~ in all material respects by the Company of ~~their~~ its obligations hereunder and to satisfaction, as of the Closing Date, of the following additional ~~conditions precedent~~conditions: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have ~~received~~been issued and not withdrawn and no proceedings for that purpose shall have been instituted or, ~~with respect~~ to the Company's knowledge, threatened; and the Prospectus Supplement shall have been filed or transmitted for filing with the Commission in accordance with Rule 424 under the 1933 Act. (b) The Company shall have delivered to the Underwriters a ~~certificate~~certificate of the Company, ~~dated the Closing Date, of~~ signed by an authorized officer of the Company ~~in which such officer~~and dated the Closing Date, to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ effect that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on at and as of the Closing Date with the same effect as if made on the Closing Date, ; and (ii) the Company has ~~complied~~ in all material respects complied with all the agreements and satisfied all the conditions on its part that are required hereby to be performed or satisfied ~~hereunder~~ at or ~~before~~ prior to the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (bc) The ~~Representatives~~ Underwriters shall have ~~received,~~ received with respect to the ~~Seller~~Company a good standing certificate from the Secretary of State of the State of Delaware, dated not earlier than 10 days prior to the Closing Date. (d) The Underwriters shall have received from the Secretary or an assistant secretary of the Company, in his individual capacity, a certificate, dated the Closing Date, ~~of an authorized officer of the Seller in which such officer,~~ to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ effect that: (i) ~~the representations and warranties~~ each individual who, as an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Pooling and Servicing Agreement, either of the Mortgage Loan Purchase Agreements or any other document or certificate delivered on or before the Closing Date in ~~this~~ connection with the transactions contemplated herein, in the Pooling and Servicing Agreement ~~are true~~ or in either of the Mortgage Loan Purchase Agreements, was at the respective times of such signing and ~~correct in all material respects on~~ delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (ii) no event (including, without limitation, any act or omission on the ~~Seller~~ part of the Company) has ~~complied~~ occurred since the date of the good standing certificate referred to in ~~all material respects with all agreements~~ paragraph (c) above which has affected the good standing of the Company under the laws of the State of Delaware. Such certificate shall be accompanied by true and ~~satisfied all conditions~~ complete copies (certified as such by the Secretary or an assistant secretary of the Company) of (i) the certificate of incorporation and by-laws of the Company, as in effect on ~~its part to be performed or satisfied hereunder at or before~~ the Closing Date, and (~~iii~~ii) ~~since~~ the ~~Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ resolutions of the ~~Seller’s credit card business, except as set forth in or~~ Company and any required shareholder consent relating to the transactions contemplated in this Agreement, the ~~Preliminary Prospectus (references to~~ Pooling and Servicing Agreement and the ~~Preliminary Prospectus in this clause include any amendments and supplements thereto)~~Mortgage Loan Purchase Agreements. (ce) The ~~Representatives~~ Underwriters shall have received ~~an opinion of the general counsel~~from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ~~deputy general counsel, chief~~ special counsel for ~~transactions~~the Company, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives)a favorable opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described substantially in the ~~Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables~~form attached hereto as Exhibit A-1. (iif) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives Underwriters shall have received an copies of all legal opinion ~~or opinions of ▇~~letters delivered by ▇▇▇▇▇▇ ~~and~~ ▇▇▇▇▇▇ ~~LLP~~▇▇▇▇▇ & ▇▇▇▇, special counsel for the Company, to the Rating Agencies in connection with the issuance of the Certificates, accompanied in each case by a letter signed by ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ stating that the Underwriters may rely on such opinion letter as if it were addressed to them as of date thereof. (g) The Underwriters shall have received from in-house counsel for the Company, a favorable opinion, dated the Closing Date, substantially in the form attached hereto as Exhibit A-2. (h) The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, special counsel for the Company and the ~~Seller~~Underwriters, a letter, dated the Closing Date, substantially in the form attached hereto as Exhibit A-3, regarding certain information in the Registration Statement and the Prospectus. (i) The Underwriters shall have received from Deloitte & Touche, LLP, certified public accountants, a letter dated the Closing Date and satisfactory in form and substance ~~reasonably satisfactory~~ to the ~~Representatives~~ Lead Underwriters and ~~their counsel~~▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, as special counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~Each~~ they have performed certain specified procedures as a result of which they have determined that the information of an accounting, financial or statistical nature set forth in the Prospectus Supplement under the captions "Summary of the Prospectus Supplement," "Description of the Mortgage Pool" and "Yield and Maturity Considerations" and on Annex A-1, Annex A-2, Annex A-3 and Annex B agrees with the data sheet or computer tape prepared by or on behalf of the Mortgage Loan Sellers, except for such non-material deviations as are otherwise noted in such letter; and (ii) they have compared the data contained in the data sheet or computer tape referred to in the immediately preceding clause (i) to information contained in agreed upon documents that are part of the Mortgage Loan files and in such other sources as shall be specified by them, and found such data and information to be in agreement in all material respects, except for such non-material deviations as are otherwise noted in such letter. (j) The Underwriters shall have received, with respect to each of the Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent, a favorable opinion of counsel, dated the Closing Date, addressing: the valid existence of such party under the laws of its jurisdiction of organization; the due authorization, execution and delivery of the Pooling and Servicing ~~Agreement~~Agreement by such party; the enforceability of the Pooling and Servicing Agreement against such party, subject to such limitations as are reasonably acceptable to the Lead Underwriters and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, as special counsel for the Underwriters; and such other matters as the Lead Underwriters and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, as special counsel for the Underwriters, may reasonably request. Counsel rendering each such opinion may express its reliance as to factual matters on representations and warranties made by, and on certificates or other documents furnished by officers and/or authorized representatives of, the ~~Asset Representations Review Agreement,~~ parties to the ~~Transfer~~ Pooling and Servicing Agreement and on certificates furnished by public officials and, further, may assume the ~~Receivables Purchase Agreement constitutes the legal~~due authorization, ~~valid~~ execution and ~~binding obligation~~ delivery of the ~~Company~~ instruments and documents referred to therein by the ~~Seller under~~ parties thereto other than the party on behalf of which such opinion is being rendered. Each such opinion need cover only the laws of the State of New York, ~~enforceable against~~ the ~~Company~~ laws of the jurisdiction of organization for the party on behalf of which such opinion is being rendered and the ~~Seller in accordance with its terms~~federal law of the United States. (iik) The Underwriters shall have been furnished with all documents, certificates and opinions required to be delivered by UBSWREI, UBSPF and UBS(USA) in connection with the sale ~~and delivery~~ by UBSWREI of the ~~Notes in~~ UBS Mortgage Loans to the ~~manner contemplated~~ Company, pursuant to the UBS Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to rely on each such certificate executed and delivered by ~~this Agreement and the Pooling and Servicing Agreement do not require (A) the qualification of the Pooling and Servicing Agreement under the Trust Indenture Act~~UBSWREI, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1UBS(USA) or ~~3(c)(7) thereof) upon which~~ any of their respective officers and representatives, to the ~~Master Trust or~~ same extent that the ~~Issuer~~Company may so rely, ~~as applicable, is relying (although other statutory or regulatory exclusions or exemptions may~~ and each such opinion addressed to the Company shall also be ~~available)~~addressed to the Underwriters. (~~iii~~l) The ~~Indenture has~~ Underwriters shall have been ~~qualified under~~ furnished with all documents, certificates and opinions required to be delivered by Holdings in connection with the ~~Trust Indenture Act~~sale by Holdings of its Mortgage Loans to the Company, pursuant to the Holdings Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to rely on each such certificate executed and delivered by Holdings or any of its officers and representatives, to the same extent that the Company may so rely, and each such opinion addressed to the Company shall also be addressed to the Underwriters. (ivm) The ~~Collateral Certificate~~Underwriters and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, ~~when executed~~ as special counsel for the Underwriters, shall have been furnished with such other documents and ~~authenticated in accordance with~~ opinions as the ~~terms~~ Lead Underwriters and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, as special counsel for the Underwriters, may reasonably require, for the purpose of enabling them to pass upon the issuance and sale of the ~~Pooling~~ Certificates as herein contemplated and ~~Servicing Agreement~~related proceedings, ~~will be duly and validly issued and outstanding and will be entitled~~ or in order to evidence the ~~benefits~~ accuracy of any of the ~~Pooling and Servicing Agreement~~representations or warranties, or the fulfillment of any of the conditions, herein contained. (vn) ~~Each~~ The Certificates shall have been assigned ratings no less than those set forth on Schedule I and such ratings shall not have been qualified, downgraded or withdrawn. If any of the conditions specified in this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, if the Company is in material breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to ~~the descriptions thereof contained~~ above or elsewhere in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct this Agreement shall not be in all material respects. (vii) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, respects reasonably satisfactory in form and substance ~~reasonably satisfactory~~ to the ~~Representatives~~ Lead Underwriters and ~~their counsel: (i) With respect~~ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, as special counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Lead Underwriters. Notice of such cancellation shall be given to the ~~perfection of the Company’s interest~~ Company in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization ofwriting, or ~~filing with, any Virginia governmental agency~~ by telephone or ~~authority or any Virginia court is required on the part of the Seller under applicable Virginia~~ telegraph confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Lb Ubs Com Mor Tr 2001 C2 Com Mor Pass Thru Cer Ser 2001 C2)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and ~~their~~ to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the ~~Receivables~~ case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the ~~Collateral Certificate and certain other matters relating~~ Underwriters or accompanied by reliance letters to ~~any applicable credit enhancement~~the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With respect~~ The Underwriters shall have received from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters. (k) The Underwriters shall have received from KPMG LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (l) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (m) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (n) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~o) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (p) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (q) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (r) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (COMM 2015-Pc1 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Offered Certificates as provided in this Underwriting Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Contract Sellers contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Contract Sellers made in any officer=s certificate pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Contract Sellers of their obligations ~~hereunder~~ hereunder, and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) The ~~Representatives~~ Registration Statement shall have ~~received~~become effective and no stop order suspending the effectiveness of the Registration Statement, ~~with respect~~ as amended from time to time, shall have been issued and not withdrawn; no proceedings for that purpose shall have been instituted or, to the ~~Company~~best knowledge of the Contract Sellers, threatened; and the Prospectus Supplement shall have been filed or transmitted for filing with the Commission in accordance with Rule 424 under the Act. (b) Each Contract Seller shall have delivered to you a certificate, dated the Closing Date, of ~~an authorized officer of the Company in which such officer~~any Vice President, Assistant Treasurer or any Assistant Secretary thereof to the ~~best~~ effect that the signer of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined this Underwriting Agreement, ~~shall state that~~ the Registration Statement and the Prospectus and that: (i) the representations and warranties ~~of the Company~~ made by it in this Underwriting Agreement are true and correct in all material respects on at and as of the Closing Date with the same effect as if made on the Closing Date, (ii) ~~the Company~~ it has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder~~ at or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~knowledge of such signer, threatened, and (iv) ~~since~~ nothing has come to such signer's attention that would lead such signer to believe that the ~~Time~~ Prospectus contains any untrue statement of ~~Sale~~a material fact or omits to state any material fact necessary in order to make the statements therein, ~~there has been no material adverse change~~ in the ~~condition (financial or otherwise)~~ light of the ~~Company’s business~~circumstances under which they were made, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto)not misleading. (c) The ~~Representatives~~ Underwriters shall have received ~~an opinion of the general counsel~~from ▇▇▇▇▇▇, ~~deputy general counsel~~▇▇▇▇▇▇▇▇▇▇ & Sutcliffe LLP, ~~chief~~ counsel for ~~transactions~~the Contract Sellers, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives)a favorable opinion, dated the Closing ~~Date,~~ Date and satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the ~~Representatives and their counsel~~Underwriters, to the effect that: (i) ~~Capital One Bank (USA), National Association is a national banking association~~ The Registration Statement has become effective under the ~~laws~~ Act, and, to such counsel's knowledge, no stop order suspending the effectiveness of the ~~United States~~Registration Statement has been issued and not withdrawn, and no proceedings for that purpose have been instituted or threatened under Section 8(d) of the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the ReceivablesAct. (ii) ~~The Seller has the power to execute and deliver each~~ There are no contracts or documents of the ~~Program Agreements~~ Contract Sellers which are required to be filed as exhibits to the Registration Statement pursuant to the Act which ~~it is a party, and~~ have not been so filed or incorporated by reference therein on or prior to ~~consummate~~ the ~~transactions set forth herein and therein~~Effective Date. (iii) ~~Each~~ The conditions to the use by the Contract Sellers of a registration statement on Form S-3 have been satisfied with respect to the Registration Statement and the Registration Statement, as of the ~~Program Agreements~~ Effective Date, and the Prospectus, as of the date of the Prospectus Supplement, other than any financial or statistical information contained therein as to which such counsel need express no opinion, complied as to form in all material respects with the ~~Seller is a party has been duly authorized by all necessary action on the part~~ requirements of the ~~Seller~~ Act and ~~has been duly executed~~ the applicable rules and ~~delivered by the Seller~~regulations thereunder. (iv) ~~Each~~ The Agreement constitutes a valid, legal and binding agreement of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New YorkContract Sellers, enforceable against ~~the Company and the~~ each such Contract Seller in accordance with its terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the rights of creditors, and (ii) general principles of equity, whether enforcement is sought in a proceeding in equity or at law. The Underwriting Agreement constitutes a valid and binding agreement of the Contract Sellers. (iiv) 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (iii) The Indenture has been qualified under the Trust Indenture Act. (iv) The Collateral CertificateOffered Certificates, when executed and authenticated in accordance with the terms of the ~~Pooling~~ Agreement and ~~Servicing~~ delivered to and paid for by the Underwriters in accordance with this Underwriting 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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia the

Appears in 1 contract

Sources: Underwriting Agreement (Bank of America National Trust & Saving Association)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the Offered Notes ~~will~~ shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller herein as of the date hereof and the Closing Date~~Company contained in this Agreement, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional conditions ~~precedent~~applicable to the Note Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted, ~~with respect~~ or to the knowledge of the Company, threatened by the Commission. (b) The Company shall have furnished to the Representatives a ~~certificate~~certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of ~~an authorized officer of~~ such certificate has carefully examined the Transaction Documents to which the Company ~~in which such officer~~is a party, and that, to the best of ~~his or her~~ such person’s knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of the Company in this Agreement and the Transaction Documents to which the Company is a party are true and correct in all material ~~respects on~~ respects, and ~~as of the Closing Date, (ii)~~ the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date. (c) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware; Holding is a corporation validly existing and in good standing under the laws of the State of Delaware; PLTHL is a limited liability company validly existing and in good standing under the laws of the State of Delaware; and each of the Company, PLTHL and Holding has full power and authority to enter into and perform its obligations under this Agreement and the Transaction Documents and to consummate the transactions contemplated hereby and thereby; (ii) the execution and delivery by each of the Bank, GECC, PLTHL, Holding, the Issuer and the Company (each, a “Specified Entity”) of this Agreement (if applicable) and the Transaction Documents to which it is a party, and the consummation by each of the transactions contemplated thereby, will not violate any applicable law, statute or governmental rule or regulation; (iii) the execution and delivery by each Specified Entity of this Agreement (if applicable) and the Transaction Documents to which it is a party does not, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of this opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (iv) the execution and delivery by each of the Company and Holding of this Agreement and the Transaction Documents to which it is a party do not, and the consummation by the Company of the transactions contemplated thereby to occur on the date of this opinion will not, violate or contravene any term or provision of the Certificate of Formation or the Limited Liability Company Agreement of the Company or the Certificate of Incorporation or By-Laws of Holding; (v) each of the Transaction Documents (other than the Trust Agreement) constitutes a legal, valid and binding obligation of each of GECC, the Issuer, the Company, PLTHL and Holding that is a party thereto, enforceable against each such party in accordance with its terms; (vi) each of the Notes is in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified herein or in the Note Purchase Agreement, as applicable, will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture; (vii) the Issuer is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, required to be registered under the Investment Company Act of 1940, as amended; (viii) the Registration Statement became effective under the Act not more than three years prior to the Closing Date, ~~(iii)~~ and the ~~Registration Statement~~ Prospectus has been ~~declared~~ filed with the Commission pursuant to Rule 424(b) thereunder in the manner and ~~remains effective~~within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~has been issued~~ and the Prospectus and no proceedings for that purpose have been ~~instituted or are threatened by~~ instituted; (ix) the ~~Commission, and (iv) since the Time of Sale, there has been no material adverse change~~ statements in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Base Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~The Trust—Perfection and Priority of Security Interests” and “~~Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇~~ —Conservatorship and ~~▇▇▇▇▇▇ LLP, special counsel for the Company~~ Receivership; Bankruptcy,” and “ERISA Considerations” and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the ~~Preliminary~~ Prospectus ~~and the Prospectus~~ Supplement under the ~~headings~~ heading “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus under the headings “Certain Legal Aspects of the Receivables” and “Benefit Plan Investors,Structural Summary—ERISA Considerations” 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. (viii) 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. (ix) 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.; (x) In the ~~event~~ Transaction Documents and the ~~Federal Deposit Insurance Corporation were~~ Notes conform in all material respects to ~~be appointed as conservator or receiver for~~ the ~~Bank pursuant to Section 11(c~~descriptions thereof contained in the Prospectus; (xi) the Indenture has been duly qualified under the Trust Indenture Act of ~~the Federal Deposit Insurance Act~~1939, as amended, ~~in a matter properly briefed~~ and ~~presented~~ complies as to ~~a federal court~~ form with ~~jurisdiction over such conservatorship or receivership,~~ the ~~court, exercising reasonable judgment after full consideration~~ Trust Indenture Act of ~~all relevant factors in a properly presented~~ 1939 and ~~argued case, would hold that~~ the ~~Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property~~ rules and regulations of the ~~Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or~~ Commission thereunder; and (Bxii) ~~avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives~~ each of ~~the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning~~ the Registration Statement, as of its Effective Date, and the ~~Preliminary~~ Prospectus, as of its date, complied as to form in all material respects with the ~~Ratings Issuer Free Writing Prospectus~~ requirements of the Act and the ~~Prospectus~~ rules and ~~have considered~~ regulations under the ~~matters required~~ Act, except that such counsel need not express any opinion as to ~~be stated~~ the financial and statistical data included therein or excluded therefrom or the exhibits to the Registration Statement and, except as, and to the ~~matters stated therein~~extent set forth in paragraphs (ix) and (x), ~~although they are~~ such counsel need not ~~independently verifying~~ assume any responsibility for the accuracy, completeness or fairness of such statements (except as stated in paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration ~~Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement or the ~~Prospectus or, in the case of the Preliminary~~ Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (ed) The Representatives shall have received ~~an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated~~ on the Closing ~~Date~~Date a signed opinion of ▇▇▇▇▇▇ ▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~With respect to~~ the ~~perfection~~ Bank is (A) duly organized and validly existing as a Federal savings bank in good standing under the laws of the ~~Company’s interest~~ United States and (B) duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ~~Receivables~~conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the ~~perfection of the Master Trust Trustee’s interest in~~ failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Receivables ~~and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~Sale Agreement; (ii) ~~With respect to certain Virginia tax consequences relating to~~ the ~~issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized~~ Bank has all requisite corporate power and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power authority to execute, deliver and perform its obligations under each of the ~~terms~~ Receivables Sale Agreement and ~~provisions~~ the Receivables Purchase Agreement and to consummate the transactions provided for therein; (iii) the execution, delivery and performance by the Bank of each ~~Program~~ of the Receivables Sale Agreement and the Receivables Purchase Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite corporate action on the part of the Bank; (iv) each of the Receivables Purchase Agreement and the Receivables Sale Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (v) the execution, delivery and performance by the Bank of each of the Receivables Purchase Agreement and the Receivables Sale Agreement and the consummation by the Bank of the transactions provided for therein, do not and will not (A) contravene, violate or constitute a default under any provision of the certificate of incorporation or by-laws of the Bank, (B) to the best of such counsel’s knowledge, contravene or violate any judgment, injunction, order or decree, to which the Bank or its property is subject, (C) to the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement and the Receivables Sale Agreement or (D) contravene, violate, conflict with or constitute a default under any agreement, lease, indenture, trust, deed, mortgage, or other instrument of which such counsel is aware to which the Bank is a party or by which the Bank is bound. (e) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇ ▇▇, Vice President and Counsel, Capital Markets for GE Capital, Retail Finance, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives to the effect that: (i) GECC is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement in the various capacities set forth therein; (ii) the execution, delivery and performance by GECC of the Servicing Agreement, the Administration Agreement and the Contribution Agreement and the consummation by GECC of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of GECC; (iii) the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement have been duly and validly executed and delivered by GECC; and (iv) the execution and delivery by GECC of the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement to which it is a ~~party~~party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or by-laws of GECC, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which GECC is a party or by which GECC is bound, or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over GECC. (f) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel for the Owner Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Owner Trustee is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware; (ii) the Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and as trustee under the Administration Agreement, and to consummate the transactions contemplated thereby; (iii) the Owner Trustee has duly authorized, executed and delivered the Trust Agreement and the Administration Agreement, as trustee, and the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms; and (iv) neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee contemplated thereby, (A) 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 federal laws of the United States governing the trust powers of the Owner Trustee and (B) 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 under the laws of the State of Delaware or the federal laws of the United States governing the trust powers of the Owner Trustee. (g) The Representatives shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Issuer, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Issuer has been duly formed and is validly existing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq., and has the power and authority under the Trust Agreement and the Delaware Statutory Trust Act to execute, deliver and perform its obligations under the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, dated as of September 25, 2003, among the Indenture Trustee, the Issuer, and the Custodian (the “Custody and Control Agreement”) and the Transfer Agreement; (ii) the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, the Transfer Agreement, the Notes to be issued by the Issuer on the Closing Date, and the Certificates have been duly authorized and executed by the Issuer; (iii) the Trust Agreement is a legal, valid and binding obligation of the Company and the Owner Trustee, enforceable against the Company and the Owner Trustee, in accordance with its terms; (iv) neither the execution, delivery or performance by the Issuer of the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement or the Transfer Agreement, nor the consummation by the Issuer of any of the transactions contemplated thereby, (A) 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 Secretary of State, or (B) is in violation of the Trust Agreement or of any law, rule or regulation of the State of Delaware applicable to the Issuer; (v) To under § 3805 (b) and (c) of the ~~effect that~~ Delaware Statutory Trust Act, (A) no ~~consent, approval or authorization~~ creditor of any Certificateholder shall have any right to obtain possession of, or ~~filing with~~otherwise exercise legal or equitable remedies with respect to, ~~any Virginia governmental agency or authority or any Virginia court is required on~~ the ~~part~~ property of the ~~Seller~~ Issuer except in accordance with the terms of the Trust Agreement, and (B) except to the extent otherwise provided in the Trust Agreement, a Certificateholder (including the Company in its capacity as such) has no interest in specific Issuer property; (vi) under ~~applicable Virginia~~ the Delaware Statutory Trust Act, the Issuer is a separate legal entity and, assuming that the Transfer Agreement conveys good title to the Issuer Estate (as defined in the Trust Agreement) to the Issuer as a true sale and not as a security arrangement, the Issuer rather than the Certificateholders will hold whatever title to the Issuer property as may be conveyed to it from time to time pursuant to the Transfer Agreement, e

Appears in 1 contract

Sources: Underwriting Agreement (GE Capital Credit Card Master Note Trust)

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~~ Seller and ~~the Seller~~ COAF herein as of the date hereof and the Closing Date, to the accuracy of the representations and warranties of the Issuer contained in each Transaction Document to which it is a party as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer~~ Seller and ~~the Seller~~ COAF made pursuant to the provisions thereof, to the performance by the ~~Company, the Issuer~~ Seller and ~~the Seller~~ COAF in all material respects of their respective obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to each of the ~~Company~~Seller and COAF, a certificate, dated the Closing Date, of an authorized officer of each of the ~~Company~~ Seller and COAF, as applicable, in which such officer, to the best of his or her knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Company~~ Seller or COAF, as applicable, in this Underwriting Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the ~~Company~~ Seller or COAF, as applicable, 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 ~~and remains~~ effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the ~~Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ date of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of SaleProspectus, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s ~~credit card~~ or COAF’s, as applicable, automobile finance business, except as set forth in or contemplated in the ~~Preliminary~~ Prospectus (references to the ~~Preliminary~~ Prospectus in this clause include any ~~amendments and~~ supplements thereto). (b) The Representatives shall have received an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special counsel to COAF and the Seller, dated the Closing Date, in form and substance satisfactory to the Representatives and their counsel, with respect to: certain corporate matters, perfection matters, matters related to the creation of a security interest, securities law matters, 1940 Act matters, tax matters and enforceability matters (including with respect to the Limited Guaranty). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ~~▇▇▇~~Mayer, Brown, ▇▇▇▇ ~~and ▇▇▇▇▇▇~~ & Maw LLP, special counsel for ~~the Company~~ COAF and the Seller, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, substantially to the effect that: : (i) ~~Each~~ the transfer of the ~~Pooling~~ Receivables by COAF to the Seller would be characterized as a true sale or absolute transfer thereof; and ~~Servicing Agreement~~(ii) in the event of an involuntary or voluntary bankruptcy case of COAF under the United States Bankruptcy Code, a bankruptcy court would not disregard the ~~Asset Representations Review Agreement~~separate existence of COAF on one hand, ~~the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company~~ and the Seller ~~under~~ or the ~~laws~~ Issuer, on the other, so as to order the substantive consolidation of the ~~State~~ assets and liabilities of ~~New York, enforceable against the Company and~~ the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as ~~applicable~~the case may be, ~~is relying (although other statutory or regulatory exclusions or exemptions may be available)~~with the bankruptcy estate of COAF. (~~iii~~d) The ~~Indenture has been qualified under~~ Representatives shall have received from Dechert LLP, a favorable opinion dated the ~~Trust Indenture Act. (iv) The Collateral Certificate~~Closing Date, 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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to such matters as the ~~financial statements, supporting schedules~~ Representatives may reasonably require; and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and COAF shall have furnished to such counsel such documents as they reasonably request for the ~~Company and public officials (references~~ purpose of enabling them to ~~the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto)~~pass on all such matters. (e) The Representatives shall have received an opinion from a General Counsel, a Deputy General Counsel or ~~opinions of McGuireWoods LLP~~an Associate General Counsel to COFC, ~~Virginia~~ and counsel to ~~the Seller~~ COAF and the ~~Company~~Seller, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel:, with respect to certain corporate matters relating to COFC, COAF and the Seller. (f) The Representatives shall have received an opinion or opinions from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Seller, dated the Closing Date, in form and substance satisfactory to the Representatives and their counsel, with respect to: (i) certain matters under Delaware law with respect to the Seller and the authority of the Seller to file a voluntary bankruptcy petition, (ii) certain corporate matters with respect to the Seller, (iii) certain matters with respect to the security interest of the Issuer and the Indenture Trustee, respectively, in the Receivables and related property. (g) At the Closing Date, Ernst & Young, LLP, shall have furnished to the Representatives a letter or letters, dated as of the Closing Date, in form and substance satisfactory to the Representatives and their 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 Issuer, COAF and the Seller) set forth in the Prospectus Supplement and the related preliminary Prospectus Supplement, agrees with the accounting records of the Issuer, COAF and the Seller, excluding any questions of legal interpretation. (h) The Representatives shall have received evidence satisfactory to the Representatives and their counsel that, on or before the Closing Date, UCC- 1 financing statements have been filed (or have been sent for filing on the Closing Date) with the appropriate UCC filing offices in the State of Delaware, the State of California, the Commonwealth of Virginia and the State of Texas, reflecting the transfer of Receivables and other related property from COAF to the Seller, the transfer of Receivables and other related property from the Seller to the Issuer and the pledge of the Receivables and other related property by the Issuer in favor of the Indenture Trustee. (i) ~~With respect~~ The Representatives shall have received evidence satisfactory to them that on or before the ~~perfection~~ Closing Date, all applicable UCC termination statements and related contractual releases or releases terminating liens of creditors of the ~~Company’s interest~~ Seller, the Issuer, COAF or any other person on the Receivables have been filed in the ~~Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement~~appropriate filing offices. (iij) ~~With respect to certain Virginia tax consequences relating~~ The Representatives shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the ~~issuance of~~ Indenture Trustee, dated the ~~Notes~~Closing Date, in form and substance satisfactory to the Representatives and their counsel. (~~iii~~k) To The Representatives shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the ~~effect that~~ Owner Trustee, dated the ~~Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has~~Closing Date, in ~~all material respects, the limited liability company power to own its assets~~ form and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to be transferred substance satisfactory to the ~~Issuer as described in the Disclosure Materials~~Representatives and their counsel. (ivl) To The Representatives shall have received an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special counsel to the ~~effect that~~ Seller and COAF, dated the ~~Company had~~ Closing Date, with respect to certificate of title matters in the state of California, in form and substance satisfactory to the Representatives and their counsel. (m) The Class A Notes shall be rated at ~~all relevant time~~the time of issuance in the highest rating category by each of S&P, ▇▇▇▇▇’▇ and Fitch. The Class B Notes shall be rated at the time of issuance at least “A+” by S&P, “A3” by ▇▇▇▇▇’▇ and “A+” by Fitch. The Notes shall not have been placed on any credit watch with a negative implication for downgrade. (n) The Representatives shall have received such information, certificates and documents as the Representatives or their counsel may reasonably request. (o) On the Closing Date, the Representatives shall have received a fully executed copy of each of the Transaction Documents. (p) The Issuer shall have delivered to DTC (or an approved custodian therefor) each of the global Notes described in Section 3(b) above, duly executed by the Issuer and authenticated by the Indenture Trustee. (q) The Indenture Trustee and the Issuer shall have executed and delivered to DTC a standard “letter of representations” sufficient to cause DTC to qualify each Class of Notes for inclusion in DTC’s book-entry registration and transfer system. (r) The Trust Accounts shall have been established in accordance with the terms of the Sale and Servicing Agreement. (s) The Prospectus shall have been filed as required by Section 2(a) hereof, and ~~now has~~no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the ~~limited liability company power~~ knowledge of the Seller, COAF or any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to ~~execute~~be included in the Prospectus or the Registration Statement or otherwise) shall have been complied with to the satisfaction of the Representatives. (t) The Indenture shall have been qualified pursuant to the Trust Indenture Act of 1939, ~~deliver and perform~~ as amended (the ~~terms and provisions~~ “Trust Indenture Act”). (u) The Representatives shall have received an executed copy of ~~each Program Agreement to which it is a party~~the Limited Guaranty. (v) To All actions required to be taken and all filings required to be made by the ~~effect that no consent~~Issuer, ~~approval~~ the Seller and COAF under the Securities Act before the Closing Date for the issuance of the Notes shall have been duly taken or ~~authorization of~~made. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Underwriting Agreement, or ~~filing with,~~ if any ~~Virginia governmental agency or authority or any Virginia court is required on the part~~ of the opinions or certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Underwriting Agreement and all its obligations hereunder may be canceled at, or at any time before, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Issuer, the Seller ~~under applicable Virginia~~ and COAF in writing or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2004-2)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the Offered Notes ~~will~~ shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller herein as of the date hereof and the Closing Date~~Company contained in this Agreement, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional conditions ~~precedent~~applicable to the Note Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted, ~~with respect~~ or to the knowledge of the Company, threatened by the Commission. (b) The Company shall have furnished to the Representatives a ~~certificate~~certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of ~~an authorized officer of~~ such certificate has carefully examined the Transaction Documents to which the Company ~~in which such officer~~is a party, and that, to the best of ~~his or her~~ such person’s knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of the Company in this Agreement and the Transaction Documents to which the Company is a party are true and correct in all material ~~respects on~~ respects, and ~~as of the Closing Date, (ii)~~ the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date. (c) The Representatives shall have received on the Closing Date a signed opinion of M▇▇▇▇ ▇▇▇▇▇ LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware; Holding is a corporation validly existing and in good standing under the laws of the State of Delaware; PLTHL is a limited liability company validly existing and in good standing under the laws of the State of Delaware; and each of the Company, PLTHL and Holding has full power and authority to enter into and perform its obligations under this Agreement and the Transaction Documents and to consummate the transactions contemplated hereby and thereby; (ii) the execution and delivery by each of the Bank, GECC, PLTHL, Holding, the Issuer and the Company (each, a “Specified Entity”) of this Agreement (if applicable) and the Transaction Documents to which it is a party, and the consummation by each of the transactions contemplated thereby, will not violate any applicable law, statute or governmental rule or regulation; (iii) the execution and delivery by each Specified Entity of this Agreement (if applicable) and the Transaction Documents to which it is a party does not, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of this opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (iv) the execution and delivery by each of the Company and Holding of this Agreement and the Transaction Documents to which it is a party do not, and the consummation by the Company of the transactions contemplated thereby to occur on the date of this opinion will not, violate or contravene any term or provision of the Certificate of Formation or the Limited Liability Company Agreement of the Company or the Certificate of Incorporation or By-Laws of Holding; (v) each of the Transaction Documents (other than the Trust Agreement) constitutes a legal, valid and binding obligation of each of GECC, the Issuer, the Company, PLTHL and Holding that is a party thereto, enforceable against each such party in accordance with its terms; (vi) each of the Notes is in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified herein or in each Note Purchase Agreement, as applicable, will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture; (vii) the Issuer is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, required to be registered under the Investment Company Act of 1940, as amended; (viii) the Registration Statement became effective under the Act not more than three years prior to the Closing Date, ~~(iii)~~ and the ~~Registration Statement~~ Prospectus has been ~~declared~~ filed with the Commission pursuant to Rule 424(b) thereunder in the manner and ~~remains effective~~within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~has been issued~~ and the Prospectus and no proceedings for that purpose have been ~~instituted or are threatened by~~ instituted; (ix) the ~~Commission, and (iv) since the Time of Sale, there has been no material adverse change~~ statements in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Base Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~The Trust—Perfection and Priority of Security Interests” and “~~Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇~~ —Conservatorship and ~~▇▇▇▇▇▇ LLP, special counsel for the Company~~ Receivership; Bankruptcy,” and “ERISA Considerations” and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the ~~Preliminary~~ Prospectus ~~and the Prospectus~~ Supplement under the ~~headings~~ heading “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus under the headings “Certain Legal Aspects of the Receivables” and “Benefit Plan Investors,Structural Summary—ERISA Considerations” 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. (viii) 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. (ix) 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.; (x) In the ~~event~~ Transaction Documents and the ~~Federal Deposit Insurance Corporation were~~ Notes conform in all material respects to ~~be appointed as conservator or receiver for~~ the ~~Bank pursuant to Section 11(c~~descriptions thereof contained in the Prospectus; (xi) the Indenture has been duly qualified under the Trust Indenture Act of ~~the Federal Deposit Insurance Act~~1939, as amended, ~~in a matter properly briefed~~ and ~~presented~~ complies as to ~~a federal court~~ form with ~~jurisdiction over such conservatorship or receivership,~~ the ~~court, exercising reasonable judgment after full consideration~~ Trust Indenture Act of ~~all relevant factors in a properly presented~~ 1939 and ~~argued case, would hold that~~ the ~~Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property~~ rules and regulations of the ~~Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or~~ Commission thereunder; and (Bxii) ~~avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives~~ each of ~~the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning~~ the Registration Statement, as of its Effective Date, and the ~~Preliminary~~ Prospectus, as of its date, complied as to form in all material respects with the ~~Ratings Issuer Free Writing Prospectus~~ requirements of the Act and the ~~Prospectus~~ rules and ~~have considered~~ regulations under the ~~matters required~~ Act, except that such counsel need not express any opinion as to ~~be stated~~ the financial and statistical data included therein or excluded therefrom or the exhibits to the Registration Statement and, except as, and to the ~~matters stated therein~~extent set forth in paragraphs (ix) and (x), ~~although they are~~ such counsel need not ~~independently verifying~~ assume any responsibility for the accuracy, completeness or fairness of such statements (except as stated in paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration ~~Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement or the ~~Prospectus or, in the case of the Preliminary~~ Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (ed) The Representatives shall have received ~~an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated~~ on the Closing ~~Date~~Date a signed opinion of D▇▇▇▇▇ ▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~With respect to~~ the ~~perfection~~ Bank is (A) duly organized and validly existing as a Federal savings bank in good standing under the laws of the ~~Company’s interest~~ United States and (B) duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ~~Receivables~~conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the ~~perfection of the Master Trust Trustee’s interest in~~ failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Receivables ~~and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~Sale Agreement; (ii) ~~With respect to certain Virginia tax consequences relating to~~ the ~~issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized~~ Bank has all requisite corporate power and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power authority to execute, deliver and perform its obligations under each of the ~~terms~~ Receivables Sale Agreement and ~~provisions~~ the Receivables Purchase Agreement and to consummate the transactions provided for therein; (iii) the execution, delivery and performance by the Bank of each ~~Program~~ of the Receivables Sale Agreement and the Receivables Purchase Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite corporate action on the part of the Bank; (iv) each of the Receivables Purchase Agreement and the Receivables Sale Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (v) the execution, delivery and performance by the Bank of each of the Receivables Purchase Agreement and the Receivables Sale Agreement and the consummation by the Bank of the transactions provided for therein, do not and will not (A) contravene, violate or constitute a default under any provision of the certificate of incorporation or by-laws of the Bank, (B) to the best of such counsel’s knowledge, contravene or violate any judgment, injunction, order or decree, to which the Bank or its property is subject, (C) to the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement and the Receivables Sale Agreement or (D) contravene, violate, conflict with or constitute a default under any agreement, lease, indenture, trust, deed, mortgage, or other instrument of which such counsel is aware to which the Bank is a party or by which the Bank is bound. (e) The Representatives shall have received on the Closing Date a signed opinion of D▇▇▇▇▇ ▇▇, Vice President and Counsel, Capital Markets for GE Capital, Retail Finance, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives to the effect that: (i) GECC is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement in the various capacities set forth therein; (ii) the execution, delivery and performance by GECC of the Servicing Agreement, the Administration Agreement and the Contribution Agreement and the consummation by GECC of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of GECC; (iii) the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement have been duly and validly executed and delivered by GECC; and (iv) the execution and delivery by GECC of the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement to which it is a ~~party~~party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or by-laws of GECC, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which GECC is a party or by which GECC is bound, or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over GECC. (f) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel for the Owner Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Owner Trustee is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware; (ii) the Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and as trustee under the Administration Agreement, and to consummate the transactions contemplated thereby; (iii) the Owner Trustee has duly authorized, executed and delivered the Trust Agreement and the Administration Agreement, as trustee, and the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms; and (iv) neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee contemplated thereby, (A) 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 federal laws of the United States governing the trust powers of the Owner Trustee and (B) 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 under the laws of the State of Delaware or the federal laws of the United States governing the trust powers of the Owner Trustee. (g) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Issuer, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Issuer has been duly formed and is validly existing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq., and has the power and authority under the Trust Agreement and the Delaware Statutory Trust Act to execute, deliver and perform its obligations under the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, dated as of September 25, 2003, among the Indenture Trustee, the Issuer, and the Custodian (the “Custody and Control Agreement”) and the Transfer Agreement; (ii) the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, the Transfer Agreement, the Notes to be issued by the Issuer on the Closing Date, and the Certificates have been duly authorized and executed by the Issuer; (iii) the Trust Agreement is a legal, valid and binding obligation of the Company and the Owner Trustee, enforceable against the Company and the Owner Trustee, in accordance with its terms; (iv) neither the execution, delivery or performance by the Issuer of the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement or the Transfer Agreement, nor the consummation by the Issuer of any of the transactions contemplated thereby, (A) 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 Secretary of State, or (B) is in violation of the Trust Agreement or of any law, rule or regulation of the State of Delaware applicable to the Issuer; (v) To under § 3805 (b) and (c) of the ~~effect that~~ Delaware Statutory Trust Act, (A) no ~~consent, approval or authorization~~ creditor of any Certificateholder shall have any right to obtain possession of, or ~~filing with~~otherwise exercise legal or equitable remedies with respect to, ~~any Virginia governmental agency or authority or any Virginia court is required on~~ the ~~part~~ property of the ~~Seller~~ Issuer except in accordance with the terms of the Trust Agreement, and (B) except to the extent otherwise provided in the Trust Agreement, a Certificateholder (including the Company in its capacity as such) has no interest in specific Issuer property; (vi) under ~~applicable Virginia~~ the Delaware Statutory Trust Act, the Issuer is a separate legal entity and, assuming that the Transfer Agreement conveys good title to the Issuer Estate (as defined in the Trust Agreement) to the Issuer as a true sale and not as a security arrangement, the Issuer rather than the Certificateholders will hold whatever title to the Issuer property as may be conveyed to it from time to time pursuant to the Transfer Agreement,

Appears in 1 contract

Sources: Underwriting Agreement (GE Capital Credit Card Master Note Trust)

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 made by the ~~part of the Company, the Issuer~~ Depositor and ~~the Seller~~ SunTrust herein as of the date hereof and the Closing Date, to the accuracy of the representations and warranties of the Issuer contained in each Transaction Document to which it is a party as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer~~ Depositor and ~~the Seller~~ SunTrust made pursuant to the provisions thereof, to the performance by the ~~Company, the Issuer~~ Depositor and ~~the Seller~~ SunTrust in all material respects of their respective obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to each of the ~~Company~~Depositor and SunTrust, a certificate, dated the Closing Date, of an authorized officer of each of the ~~Company~~ Depositor and SunTrust, as applicable, in which such officer, to the best of his or her knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Company~~ Depositor or SunTrust, as applicable, in this Underwriting Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the ~~Company~~ Depositor or SunTrust, as applicable, 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 ~~and remains~~ effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the ~~Time of Sale~~Applicable Date, there has been no material adverse change in the condition (financial or otherwise) of the ~~Company~~Depositor’s or SunTrust’s, as applicable, automobile finance business, except as set forth in or contemplated in the Preliminary ~~Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto)~~Prospectus. (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special counsel to SunTrust and the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives)Depositor, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, with respect to: certain corporate matters, perfection matters, matters related to the ~~effect that: (i) Capital One Bank (USA)~~creation of a security interest, ~~National Association is a national banking association under the laws of the United States~~securities law matters, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act ~~(other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer~~matters, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (iii) The Indenture has been qualified under the Trust Indenture Act. (iv) The Collateral Certificate, when executed tax matters 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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreementenforceability matters. Such counsel shall also ~~state~~ provide a letter stating that they have participated in conferences with representatives of the ~~Seller, the Company~~ Depositor and ~~the Issuer~~ SunTrust and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary ~~Prospectus, the Ratings Issuer Free Writing~~ Prospectus 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~~ factual matters of such ~~statements (except as stated in paragraphs (vi) and (vii) above)~~statements. Based upon and subject to the foregoing, such letter shall state that nothing has come to such counsel’s attention to cause such counsel to believe that the Registration Statement, ~~when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith),~~ at the ~~time it became effective~~earlier of the date the Prospectus was first used or the Applicable Date, contained ~~any~~ an untrue statement of a material fact or omitted to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Preliminary Prospectus, ~~when taken~~ as of the Applicable Date, considered as a whole and together with the ~~Ratings Issuer Free Writing~~ statements in the Prospectus with respect to blanks and other items identified in the Preliminary Prospectus as to be completed in the Prospectus, ~~as of the Time of Sale, contained any~~ included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus,~~ as of its date or as of the date of such ~~opinion~~letter, ~~contained~~ included or ~~contains any~~ includes an untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (it being understood~~ misleading; provided, however, that such counsel ~~has not been requested to and~~ does not ~~make~~ assume any ~~comment in this paragraph with respect to~~ responsibility for the ~~financial statements~~accuracy, ~~supporting schedules and other financial~~ completeness or ~~statistical information~~ fairness of the statements contained in the Registration Statement, the Preliminary ~~Prospectus, when taken together with the Ratings Issuer Free Writing~~ Prospectus or the ~~Prospectus or, in the case of the Preliminary~~ Prospectus, and such counsel does not express any belief with respect to (i) the ~~omission of pricing and price-dependent information~~financial statements or other financial, ~~which information shall of necessity appear only~~ statistical or accounting data contained in or omitted from the ~~final Prospectus). In rendering such opinion~~Registration Statement, 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the ~~Prospectus~~ Prospectus, (ii) the Underwriter Information (as defined in ~~this clause include any amendments~~ Section 8(b)) [or ~~supplements thereto~~(iii) the Swap Counterparty Information (as defined in Section 2(a)(iii))]. (c) The Representatives shall have received an opinion or opinions of Mayer, Brown, ▇▇▇▇ & Maw LLP, special counsel for SunTrust and the Depositor, dated the Closing Date, in form and substance satisfactory to the Representatives and their counsel, with respect to certain matters relating to the treatment of the transfer of the Receivables from SunTrust to the Depositor by the Federal Deposit Insurance Corporation. (d) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, a favorable opinion dated the Closing Date, with respect to such matters as the Representatives may reasonably require; and the Depositor and SunTrust shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass on all such matters. (e) The Representatives shall have received an opinion from internal counsel of SunTrust or such other legal counsel that SunTrust may choose (provided that such legal counsel is acceptable to the Representatives) dated the Closing Date, in form and substance satisfactory to the Representatives and their counsel, with respect to certain corporate matters relating to SunTrust and the Depositor. (f) The Representatives shall have received an opinion or opinions ~~of McGuireWoods LLP~~from [ ], ~~Virginia~~ special Delaware counsel to the ~~Seller and the Company~~Depositor, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel:, with respect to: (i) certain matters under Delaware law with respect to the Depositor and the authority of the Depositor to file a voluntary bankruptcy petition, (ii) certain limited liability company matters with respect to the Depositor, and (iii) certain matters with respect to the security interest of the Issuer and the Indenture Trustee, respectively, in the Receivables and related property. (g) At the Closing Date, Ernst & Young, LLP shall have furnished to the Representatives a letter or letters, dated as of the Closing Date, in form and substance satisfactory to the Representatives and their 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 Issuer, SunTrust and the Depositor) set forth in the Prospectus Supplement and the related preliminary Prospectus Supplement, agrees with the accounting records of the Issuer, SunTrust and the Depositor, excluding any questions of legal interpretation. (h) The Representatives shall have received evidence satisfactory to the Representatives and their counsel that, on or before the Closing Date, UCC- 1 financing statements have been filed (or have been sent for filing on the Closing Date) with the appropriate UCC filing offices, reflecting the transfer of Receivables and other related property from SunTrust to the Depositor, the transfer of Receivables and other related property from the Depositor to the Issuer and the pledge of the Receivables and other related property by the Issuer in favor of the Indenture Trustee. (i) ~~With respect~~ The Representatives shall have received evidence satisfactory to them that on or before the ~~perfection~~ Closing Date, all applicable UCC termination statements and related contractual releases or releases terminating liens of creditors of the ~~Company’s interest~~ Depositor, the Issuer, or SunTrust on the Receivables have been filed in the ~~Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement~~appropriate filing offices. (iij) ~~With respect~~ The Representatives shall have received an opinion of [ ], counsel to ~~certain Virginia tax consequences relating~~ the Indenture Trustee, dated the Closing Date, in form and substance satisfactory to the Representatives and their counsel. (k) The Representatives shall have received an opinion of [ ], counsel to the Owner Trustee, dated the Closing Date, in form and substance satisfactory to the Representatives and their counsel. (l) The Notes shall be rated at the time of issuance in the rating category set forth in the Terms Agreement and shall not have been placed on any credit watch with a negative implication for downgrade. (m) The Representatives shall have received such information, certificates and documents as the Representatives or their counsel may reasonably request. (n) On the Closing Date, the Representatives shall have received a fully executed copy of each of the Transaction Documents. (o) The Issuer shall have delivered to DTC (or an approved custodian therefor) each of the global Notes described in Section 3 above, duly executed by the Issuer and authenticated by the Indenture Trustee. (p) The Issuer shall have executed and delivered to DTC a standard “letter of representations” sufficient to cause DTC to qualify each Class of Notes for inclusion in DTC’s book-entry registration and transfer system. (q) The Trust Accounts shall have been established in accordance with the terms of the Sale and Servicing Agreement. (r) The Prospectus shall have been filed as required by Section 1 hereof, and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Depositor, SunTrust or any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Prospectus or the Registration Statement or otherwise) shall have been complied with to the satisfaction of the Representatives. (s) The Indenture shall have been qualified pursuant to the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). (t) All actions required to be taken and all filings required to be made by the Issuer, the Depositor and SunTrust under the Act before the Closing Date for the issuance of the ~~Notes~~Notes shall have been duly taken or made. (~~iii~~u) To The Representatives shall have received from the ~~effect~~ Indenture Trustee a certificate stating that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described any information contained in the ~~Disclosure Materials~~Statement of Eligibility and Qualification (Form T-1) filed with the Registration Statement is true, accurate and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a partycomplete. (v) To [(v) The Swap Agreement shall be in full force and effect.] (w) [(w) The Representatives shall have received an opinion of [_____], counsel to the ~~effect that no consent~~Swap Counterparty, ~~approval or authorization of~~dated the Closing Date, in form and substance satisfactory to the Representatives and their counsel, with respect to the enforceability of the Swap Agreement.] If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Underwriting Agreement, or ~~filing with,~~ if any ~~Virginia governmental agency or authority or any Virginia court is required on the part~~ of the ~~Seller under applicable Virginia~~ opinions or certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Underwriting Agreement and all its obligations hereunder may be canceled at, or at any time before, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Issuer, the Depositor and SunTrust in writing or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (SunTrust Auto Receivables, LLC)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus, the Prospectus and all other Time of Sale Information shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from ▇▇▇▇▇ Lovells Cadwalader US LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from ▇▇▇▇▇ Lovells ▇▇▇▇▇▇▇▇▇▇ US LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus as of the Time of Sale, and ~~their~~ to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the ~~Receivables~~ Preliminary Prospectus and the ~~Collateral Certificate~~ Prospectus with respect to each such party with the requirements of Regulation AB and ~~certain other matters relating~~ that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to ~~any applicable credit enhancement~~state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With~~ The Underwriters shall have received from counsel for the Third-Party Purchaser a favorable opinion, dated the Closing Date, with respect to ~~certain Virginia tax consequences relating~~ such matters as the Underwriters shall have reasonably requested, which will include an opinion that the Preliminary Prospectus as of the Time of Sale and the Prospectus as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the ~~issuance of~~ Underwriters or accompanied by reliance letters to the ~~Notes~~Underwriters or shall state that the Underwriters may rely upon them. (~~iii~~k) To The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the ~~effect~~ Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters. (l) The Underwriters shall have received from the Accountants, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) letters dated on or prior to the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (m) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Term Sheet (or such other FWP) by the rating agency or agencies indicated therein. (n) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (o) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (p) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (q) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (r) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (s) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (Benchmark 2026-V23 Mortgage Trust)

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~~ made by the Seller and SC herein as of the date hereof and the Closing Date, to the accuracy of the representations and warranties of the Issuer contained in each Transaction Document to which it is a party as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer~~ Seller and ~~the Seller~~ SC made pursuant to the provisions thereof, to the performance by the ~~Company, the Issuer~~ Seller and ~~the Seller~~ SC in all material respects of their respective obligations hereunder and to the following additional conditions precedent: (a) The ~~Representatives~~ Underwriters shall have received, with respect to each of the ~~Company~~Seller and SC, a certificate, dated the Closing Date, of an authorized officer of each of the ~~Company~~ Seller and SC, as applicable, in which such officer, to ~~the best of~~ his or her knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Company~~ Seller or SC, as applicable, in this Underwriting Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the ~~Company~~ Seller or SC, as applicable, 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 ~~and remains~~ effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, ~~and~~ (iv) ~~since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business,~~ except as set forth in or contemplated in the ~~Preliminary Prospectus (references to~~ Prospectus, since December 31, 2025, the performance of SC’s outstanding securitized transactions and the credit quality of the receivables underlying such securitized transactions have not materially deteriorated from the delinquency and credit loss data presented in the Preliminary ~~Prospectus in this clause include any supplements thereto).~~ Prospectus, (bv) ~~The Representatives shall have received~~no Event of Default or Servicer Replacement Event or event or condition which would, with ~~respect to the Seller~~notice or lapse of time, or both, become an Event of Default or a ~~certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his~~ Servicer Replacement Event has occurred or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, is continuing and (~~iii~~vi) since the Time of Sale, each of the Seller and SC continues to be a direct or indirect subsidiary of Banco Santander, S.A. or its successor in interest and there has been no material adverse change in the condition (financial or otherwise) of the Seller’s ~~credit card~~ or SC’s, as applicable, automobile finance business, except as set forth in or contemplated in the Preliminary ~~Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto)~~Prospectus. (cb) The ~~Representatives~~ Underwriters shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to SC, the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to Seller and the ~~Representatives)~~Servicer, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to: certain corporate matters, perfection matters, matters related to the creation of a security interest, securities law matters, 1940 Act matters, tax matters and enforceability matters. Such counsel shall also provide a “negative assurance” letter, dated as of the Closing Date, concerning the Registration Statement, the Preliminary Prospectus, the Ratings Free Writing Prospectus and the Prospectus, in form and substance reasonably satisfactory to the ~~Representatives~~ Representative. (c) The Underwriters shall have received an opinion or opinions of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel for SC and ~~their counsel~~the Seller, dated the Closing Date, in form and substance satisfactory to the ~~effect that:~~Representative, with respect to certain true sale and nonconsolidation matters. (d) The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, a favorable opinion dated the Closing Date, with respect to such matters as the Representative may reasonably require; and the Seller and SC shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass on all such matters. (e) [Reserved.] (f) The Underwriters shall have received an opinion or opinions from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special Delaware counsel to the Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to: (i) certain matters under Delaware law with respect to the Seller and the authority of the Seller to file a voluntary bankruptcy petition; and (ii) certain corporate matters with respect to the Seller. (g) On or before the Closing Date, (i) a nationally recognized independent accounting firm acceptable to the Representative shall have furnished to the Underwriters letters relating to (A) the Preliminary Prospectus, dated as of the date of the Preliminary Prospectus, and (B) the Prospectus, dated as of the date of the Prospectus, regarding certain specified procedures performed with respect to the Issued Notes and the Receivables, each in form and substance satisfactory to the Representative, and (ii) the Accounting Firm shall have furnished to the Representative the Accountant’s Due Diligence Report. (h) On the Closing Date, the Representative shall have received evidence satisfactory to it that UCC-1 financing statements will be filed on the Closing Date or within ten days thereafter with the appropriate UCC filing offices in the State of Delaware and the State of Illinois reflecting (A) the transfer of Receivables and other related property from SC to the Seller, (B) the transfer of Receivables and other related property from the Seller to the Issuer and (C) the pledge of the Receivables and other related property by the Issuer in favor of the Indenture Trustee. (i) ~~Capital One Bank (USA)~~The Representative shall have received evidence satisfactory to it that on or before the Closing Date, ~~National Association is a national banking association under the laws~~ all applicable UCC termination statements relating to liens of creditors of the ~~United States~~Seller, the Issuer, SC or any other person on the Receivables have been filed with (or have been sent for filing on the Closing Date or the next Business Day to) the appropriate filing offices, and the ~~Bank has, in all material respects~~Representative shall have received on or before the Closing Date contractual releases or releases terminating liens of creditors of the Seller, the ~~power to own its assets and operate its business as described in the Disclosure Materials~~Issuer, ~~and the Bank had at all relevant times and now has, the power to acquire, own and service~~ SC or any other person on the Receivables. (iij) The ~~Seller has~~ Underwriters shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., counsel to the ~~power~~ Indenture Trustee, dated the Closing Date, in form and substance satisfactory to ~~execute and deliver each of~~ the ~~Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein~~Representative. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (dk) The ~~Representatives~~ Underwriters shall have received an opinion or opinions of ▇▇▇▇▇▇~~▇ and~~ ▇▇, ▇▇▇▇▇▇ ~~LLP~~& ▇▇▇▇▇▇, ~~special~~ P.A., counsel ~~for~~ to the ~~Company~~ Issuer and the ~~Seller~~Owner Trustee, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller in accordance with its termsRepresentative. (iil) 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion ~~or opinions~~ of ~~McGuireWoods LLP, Virginia~~ in-house counsel to the ~~Seller and the Company~~Asset Representations Reviewer, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementRepresentative. (iim) ~~With respect~~ The Notes shall have received the ratings indicated in the Ratings Free Writing Prospectus (as defined in Section 16(a)(i) hereof) from the nationally recognized statistical rating organizations named therein. (n) The Underwriters shall have received such information, certificates and documents as the Underwriters may reasonably request. (o) On the Closing Date, the Underwriters shall have received a fully executed copy of each of the Transaction Documents. (p) The Issuer shall have delivered to ~~certain Virginia tax consequences relating~~ DTC (or an approved custodian therefor) each of the global Notes described in Section 3 hereof, duly executed by the Issuer and authenticated by the Indenture Trustee. (q) The Issuer shall have executed and delivered to DTC a standard “letter of representations” sufficient to cause DTC to qualify each Class of Notes for inclusion in DTC’s book-entry registration and transfer system, and each Class of Notes shall have been approved by DTC for inclusion on its book-entry registration and transfer system. (r) The Trust Accounts (as defined in Appendix A to the Sale Agreement) shall have been established in accordance with the terms of the Indenture or the Administration Agreement. (s) The Prospectus shall have been filed as required by Section 2(a) hereof, and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Seller, SC or any Underwriter, threatened by the Commission or by any authority administering any state securities or blue sky law, and any requests for additional information (to be included in the Prospectus or the Registration Statement or otherwise) shall have been complied with to the satisfaction of the Underwriters. (t) The Indenture shall have been qualified pursuant to the Trust Indenture Act. (u) All actions required to be taken and all filings required to be made by the Issuer, the Seller and SC under the Act before the Closing Date for the issuance of the Issued Notes~~. (iii) To~~ , including any Issued Notes retained by the ~~effect that~~ Depositor or an affiliate of the ~~Company is a limited liability company~~ Depositor, shall have been duly ~~organized and~~ taken or made. If any of the conditions specified in ~~existence under the laws of Virginia and the Company has,~~ this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided in this Underwriting Agreement, or if any of the opinions or certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters, this Underwriting Agreement and all of their obligations hereunder may be canceled at, or at any time before, the ~~limited liability company power~~ Closing Date by the Underwriters. Notice of such cancellation shall be given to ~~own its assets and operate its business as described in~~ the ~~Disclosure Materials, and had at all relevant times, and now has~~Issuer, the ~~limited liability company power to acquire~~ Seller and ~~own the Receivables and its interest~~ SC in ~~any Collateral Certificate transferred~~ writing or ~~proposed to be transferred to the Issuer as described~~ by telephone confirmed in ~~the Disclosure Materials~~writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (Santander Drive Auto Receivables Trust 2026-1)

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~~ made by the Seller and SC herein as of the date hereof and the Closing Date, to the accuracy of the representations and warranties of the Issuer contained in each Transaction Document to which it is a party as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer~~ Seller and ~~the Seller~~ SC made pursuant to the provisions thereof, to the performance by the ~~Company, the Issuer~~ Seller and ~~the Seller~~ SC in all material respects of their respective obligations hereunder and to the following additional conditions precedent: (a) The ~~Representatives~~ Underwriters shall have received, with respect to each of the ~~Company~~Seller and SC, a certificate, dated the Closing Date, of an authorized officer of each of the ~~Company~~ Seller and SC, as applicable, in which such officer, to the best of his or her knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Company~~ Seller or SC, as applicable, in this Underwriting Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the ~~Company~~ Seller or SC, as applicable, 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 ~~and remains~~ effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, ~~and~~ (iv) ~~since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business,~~ except as set forth in or contemplated in the ~~Preliminary Prospectus (references to~~ Prospectus, since November 30, 2023, the performance of SC’s outstanding securitized transactions and the credit quality of the receivables underlying such securitized transactions have not materially deteriorated from the delinquency and credit loss data presented in the Preliminary ~~Prospectus in this clause include any supplements thereto).~~ Prospectus, (bv) ~~The Representatives shall have received~~no Event of Default or Servicer Replacement Event or event or condition which would, with ~~respect to the Seller~~notice or lapse of time, or both, become an Event of Default or a ~~certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his~~ Servicer Replacement Event has occurred or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, is continuing and (~~iii~~vi) since the Time of Sale, each of the Seller and SC continues to be a direct or indirect subsidiary of Banco Santander, S.A. or its successor in interest and there has been no material adverse change in the condition (financial or otherwise) of the Seller’s ~~credit card~~ or SC’s, as applicable, automobile finance business, except as set forth in or contemplated in the Preliminary ~~Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto)~~Prospectus. (cb) The ~~Representatives~~ Underwriters shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to SC and the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives)Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to: certain corporate matters, perfection matters, matters related to the creation of a security interest, securities law matters, 1940 Act matters, tax matters and enforceability matters. Such counsel shall also provide a “negative assurance” letter, dated as of the Closing Date, concerning the Registration Statement, the Preliminary Prospectus, the Ratings Free Writing Prospectus and the Prospectus, in form and substance reasonably satisfactory to the ~~Representatives~~ Representative. (c) The Underwriters shall have received an opinion or opinions of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel for SC and ~~their counsel~~the Seller, dated the Closing Date, in form and substance satisfactory to the ~~effect that:~~Representative, with respect to certain true sale and nonconsolidation matters. (d) The Underwriters shall have received from Sidley Austin LLP, a favorable opinion dated the Closing Date, with respect to such matters as the Representative may reasonably require; and the Seller and SC shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass on all such matters. (e) The Underwriters shall have received an opinion from ▇▇▇▇▇, Kultgen, Brophy, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to SC and the Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to certain corporate matters relating to SC and the Seller. (f) The Underwriters shall have received an opinion or opinions from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special Delaware counsel to the Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to: (i) certain matters under Delaware law with respect to the Seller and the authority of the Seller to file a voluntary bankruptcy petition; and (ii) certain corporate matters with respect to the Seller. (g) On or before the Closing Date, (i) a nationally recognized independent accounting firm acceptable to the Representative shall have furnished to the Underwriters letters relating to (A) the Preliminary Prospectus, dated as of the date of the Preliminary Prospectus, and (B) the Prospectus, dated as of the date of the Prospectus, regarding certain specified procedures performed with respect to the Issued Notes and the Receivables, each in form and substance satisfactory to the Representative, and (ii) the Accounting Firm shall have furnished to the Representative the Accountant’s Due Diligence Report. (h) On the Closing Date, the Representative shall have received evidence satisfactory to it that UCC-1 financing statements will be filed on the Closing Date or within ten days thereafter with the appropriate UCC filing offices in the State of Delaware and the State of Illinois reflecting (A) the transfer of Receivables and other related property from SC to the Seller, (B) the transfer of Receivables and other related property from the Seller to the Issuer and (C) the pledge of the Receivables and other related property by the Issuer in favor of the Indenture Trustee. (i) ~~Capital One Bank (USA)~~The Representative shall have received evidence satisfactory to it that on or before the Closing Date, ~~National Association is a national banking association under the laws~~ all applicable UCC termination statements relating to liens of creditors of the ~~United States~~Seller, the Issuer, SC or any other person on the Receivables have been filed with (or have been sent for filing on the Closing Date or the next Business Day to) the appropriate filing offices, and the ~~Bank has, in all material respects~~Representative shall have received on or before the Closing Date contractual releases or releases terminating liens of creditors of the Seller, the ~~power to own its assets and operate its business as described in the Disclosure Materials~~Issuer, ~~and the Bank had at all relevant times and now has, the power to acquire, own and service~~ SC or any other person on the Receivables. (iij) The ~~Seller has~~ Underwriters shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., counsel to the ~~power~~ Indenture Trustee, dated the Closing Date, in form and substance satisfactory to ~~execute and deliver each of~~ the ~~Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein~~Representative. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (dk) The ~~Representatives~~ Underwriters shall have received an opinion or opinions of ▇▇▇▇▇▇~~▇ and~~ ▇▇, ▇▇▇▇▇▇ ~~LLP~~& ▇▇▇▇▇▇, ~~special~~ P.A., counsel ~~for~~ to the ~~Company~~ Issuer and the ~~Seller~~Owner Trustee, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller in accordance with its termsRepresentative. (iil) 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion ~~or opinions~~ of ~~McGuireWoods LLP, Virginia~~ in-house counsel to the ~~Seller and the Company~~Asset Representations Reviewer, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementRepresentative. (iim) ~~With respect~~ The Notes shall have received the ratings indicated in the Ratings Free Writing Prospectus (as defined in Section 16(a)(i) hereof) from the nationally recognized statistical rating organizations named therein. (n) The Underwriters shall have received such information, certificates and documents as the Underwriters may reasonably request. (o) On the Closing Date, the Underwriters shall have received a fully executed copy of each of the Transaction Documents. (p) The Issuer shall have delivered to ~~certain Virginia tax consequences relating~~ DTC (or an approved custodian therefor) each of the global Notes described in Section 3 hereof, duly executed by the Issuer and authenticated by the Indenture Trustee. (q) The Issuer shall have executed and delivered to DTC a standard “letter of representations” sufficient to cause DTC to qualify each Class of Notes for inclusion in DTC’s book-entry registration and transfer system, and each Class of Notes shall have been approved by DTC for inclusion on its book-entry registration and transfer system. (r) The Trust Accounts (as defined in Appendix A to the Sale and Servicing Agreement) shall have been established in accordance with the terms of the Sale and Servicing Agreement. (s) The Prospectus shall have been filed as required by Section 2(a) hereof, and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Seller, SC or any Underwriter, threatened by the Commission or by any authority administering any state securities or blue sky law, and any requests for additional information (to be included in the Prospectus or the Registration Statement or otherwise) shall have been complied with to the satisfaction of the Underwriters. (t) The Indenture shall have been qualified pursuant to the Trust Indenture Act. (u) All actions required to be taken and all filings required to be made by the Issuer, the Seller and SC under the Act before the Closing Date for the issuance of the Issued Notes~~. (iii) To~~ , including any Issued Notes retained by the ~~effect that~~ Depositor or an affiliate of the ~~Company is a limited liability company~~ Depositor, shall have been duly ~~organized and~~ taken or made. If any of the conditions specified in ~~existence under the laws of Virginia and the Company has,~~ this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided in this Underwriting Agreement, or if any of the opinions or certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters, this Underwriting Agreement and all its obligations hereunder may be canceled at, or at any time before, the ~~limited liability company power~~ Closing Date by the Underwriters. Notice of such cancellation shall be given to ~~own its assets and operate its business as described in~~ the ~~Disclosure Materials, and had at all relevant times, and now has~~Issuer, the ~~limited liability company power to acquire~~ Seller and ~~own the Receivables and its interest~~ SC in ~~any Collateral Certificate transferred~~ writing or ~~proposed to be transferred to the Issuer as described~~ by telephone or facsimile confirmed in ~~the Disclosure Materials~~writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (Santander Drive Auto Receivables Trust 2024-1)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to procure purchasers for or, failing which, to purchase the Firm Shares to be delivered at the First Closing Time and ~~pay~~ the obligation of the Stabilisation Manager to procure purchasers for or to purchase Over-allotment Shares to be delivered at the ~~Notes~~ Over-allotment Closing Time, as the case may be, will be subject to the accuracy of the representations and warranties ~~on the part~~ of the Company, the ~~Issuer~~ Directors and the ~~Seller herein as of~~ Selling Shareholders contained in this Agreement at the date ~~hereof~~ of this Agreement and ~~the~~ at such Closing ~~Date~~Time, to the accuracy of the statements of the Company, the ~~Issuer~~ Directors and the ~~Seller~~ Selling Shareholders made in any certificates to be delivered pursuant to the provisions ~~thereof~~of this Agreement, to the performance by the Company, the ~~Issuer~~ Directors and the ~~Seller in all material respects~~ Selling Shareholders of their respective obligations ~~hereunder~~ in this Agreement and to the following additional ~~conditions precedent~~conditions: (a) The ~~Representatives shall have received, with respect~~ Company having furnished to Citigroup and Deutsche Bank by such Closing Time a certificate in the ~~Company,~~ agreed form as set out in Annex I signed by a ~~certificate~~Director, dated ~~the~~ such Closing Date, ~~of an authorized officer of the Company in which such officer,~~ to the ~~best of his~~ effect that those signing such certificate have carefully examined the Prospectus, any amendment or ~~her knowledge after reasonable investigation, shall state that~~ supplement to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are ~~true~~ true, accurate and ~~correct in all material respects~~ not misleading on and as of the date of this Agreement and are true, accurate and not misleading on and as of such Closing ~~Date~~Time with the same effect as if made at such Closing Time, ~~(ii)~~ and the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder~~ under this Agreement at or ~~before the~~ prior to such Closing ~~Date,~~ Time; and (iii) the Registration Statement has been declared and remains 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 (ivii) since the ~~Time~~ date of ~~Sale~~the most recent financial statements included in the Prospectus, there has been no material adverse ~~change~~ change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise) ), prospects, earnings, business or properties of the ~~Company’s~~ Company and the other members of the Group, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in ~~or contemplated in~~ the ~~Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto)~~Prospectus. (b) The ~~Representatives shall have received, with respect~~ Directors having furnished to Citigroup and Deutsche Bank by such Closing Time a certificate in the ~~Seller,~~ agreed form as set out in Annex II signed by a ~~certificate~~Director for and on behalf of himself and the other Directors, dated ~~the~~ such Closing Date, ~~of an authorized officer of the Seller in which such officer,~~ to the ~~best of his or her knowledge after reasonable investigation, shall state~~ effect that those signing such certificate have carefully examined the Prospectus and this Agreement and that: (i) the representations and warranties of the ~~Seller~~ Directors in this Agreement are ~~true~~ true, accurate and ~~correct in all material respects~~ not misleading on and as of the date of this Agreement and are true, correct and not misleading on and as of such Closing ~~Date~~Time with the same effect as if made at such Closing Time, ~~(ii)~~ and the ~~Seller has~~ Directors have complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder~~ under this Agreement at or ~~before the~~ prior to such Closing ~~Date, and~~ Time; and (~~iii~~ii) since the ~~Time~~ date of ~~Sale~~the most recent financial statements included in the Prospectus, there has been no material adverse ~~change~~ change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise) ), prospects, earnings, business or properties of the ~~Seller’s credit card~~ Company and the other members of the Group, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in ~~or contemplated in~~ the ~~Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto)~~Prospectus. (c) ~~The Representatives shall have received an opinion~~ Each Selling Shareholder having furnished to Citigroup and Deutsche Bank by such Closing Time a certificate in the agreed form as set out in Annex III, signed by one director or authorised signatory of ~~the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or~~ each such ~~other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives)~~Selling Shareholder, dated ~~the~~ such Closing Date~~, in form and substance reasonably satisfactory to the Representatives and their counsel~~, to the effect ~~that:~~that the representations and warranties of such Selling Shareholder in this Agreement are true, accurate and not misleading on and as of the date of this Agreement and are true, accurate and not misleading at and as of such Closing Time to the same effect as if made at such Closing Time. (d) Subsequent to the date of this Agreement or, if earlier, the dates as of which information is given in the Prospectus, there shall not have been (i) ~~Capital One Bank (USA~~any change specified in the certificates referred to in Sections 6(a), ~~National Association is a national banking association under the laws of the United States,~~ (b) and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, c); or (ii) any ~~rule~~change, ~~order~~ or any development involving a prospective change, in or affecting the condition (~~known to us~~financial or otherwise), ~~statute~~ prospects, earnings, business or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation properties of the Company and the ~~Seller under the laws~~ other members of the ~~State~~ Group, taken as a whole, whether or not arising from transactions in the ordinary course of ~~New York~~business, ~~enforceable against~~ the ~~Company~~ effect of which, in any such case, is, in the sole judgment of Citigroup and Deutsche Bank, so material and adverse as to make it impractical or inadvisable to proceed with the ~~Seller in accordance with its terms. (ii) The sale and~~ offer or delivery of the ~~Notes~~ Sale Shares as contemplated in the manner contemplated by this Agreement and the Pooling and Servicing Agreement do not require (A) the qualification of the Pooling and Servicing Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto)Agreement. (e) The ~~Representatives shall have received an opinion or opinions~~ Company having complied with the provisions of ~~McGuireWoods LLP, Virginia counsel~~ Section 5(I)(a) with respect to the ~~Seller~~ furnishing of copies of the Prospectus on the date of this Agreement. (f) The documents listed in the Exhibit A having been delivered in accordance with Sections 5(I)(y), 5(I)(z), 5(I)(aa), 5(I)(bb), and Section 5(II)(m), 5(II)(n), 5(II)(o). (g) The documents referred to in Sections 4, 5 and 6 having been delivered by the dates specified in those Sections. (h) The Prospectus being approved pursuant to the Listing Rules and Prospectus Rules by the FSA not later than 5:00 pm on the date of this Agreement (or such later time and/or date as the Company, ~~dated~~ Citigroup and Deutsche Bank may agree in writing) and is published, filed and made available in accordance with the Listing Rules, the Prospectus Rules and the FSMA. (i) No matter referred to in Section 87G of the FSMA arising between the publication of the Prospectus and Admission and no Supplementary Prospectus being published by the Company. (j) Admission occurring at 8.00 a.m. on 14 December, 2005 (or such later time and/or date as the Company, Citigroup and Deutsche Bank may agree in writing). (k) The Company and each of the Directors having complied with all their respective obligations and having satisfied all conditions to be satisfied by any of them, in each case under this Agreement, the Restructuring Agreements and Restructuring Arrangements and or under the terms or conditions of the Offer, or any of them, which fall to be performed or satisfied on or prior to Admission. (l) Each of the Restructuring Agreements and the Restructuring Arrangements becoming and continuing to be enforceable against each of the parties thereto and having, and continuing to have, full force and effect, except where expressly provided in the Restructuring Agreements. (m) Each of the Restructuring Agreements and the Restructuring Arrangements becoming unconditional in all respects prior to Admission (save for any condition requiring the fulfilment of any of the conditions in this Section 6) and the Restructuring Arrangements having become incapable of termination or rescission and having been duly completed in accordance with their terms (subject only to Admission). (n) The execution and delivery by the Selling Shareholders, Citigroup and Deutsche Bank and the other Underwriters in accordance with Section 2(h) of the Agreement by 9 December 2005 (or such later date as the Selling Shareholders, Citigroup and Deutsche Bank may agree). (o) The Stock Lending Agreement having been executed and delivered by the parties thereto. (p) The passing of the Class 1 Resolution (without amendment) at the extraordinary general meeting of the shareholders of IHG to be convened for 7 December 2005 (and not, without the prior written consent of Citigroup and Deutsche Bank at any adjournment thereof). (q) Prior to any Closing ~~Date~~Time, nothing having come to the notice of Citigroup, Deutsche Bank or any of the other Underwriters that any statement contained in the Offer Documents is or has become untrue, incorrect or misleading in any respect, or any matter has arisen, which would, if the Offer was made at that time, constitute a material omission from the Offer Documents, or any of them, and which in any such case Citigroup and Deutsche Bank bona fide consider to be material in the context of the Offer or the underwriting of the Shares or Admission. Each of the Company, the Directors and the Selling Shareholders severally and not jointly undertakes to use its best endeavours to procure (so far as it lies within its or his power) that each of the conditions applicable to it is fulfilled by the due time (if any) for its fulfilment. If any of the conditions specified in this Section 6 are not fulfilled when and as provided in this Agreement or waived (if capable of waiver) in writing by Citigroup and Deutsche Bank (in their absolute discretion), or if any of the opinions and certificates mentioned above or elsewhere in this Agreement are not reasonably satisfactory in form and substance ~~reasonably satisfactory~~ to Citigroup and Deutsche Bank and counsel for Citigroup, Deutsche Bank and the other Underwriters, this Agreement and all obligations of Citigroup, Deutsche Bank and the other Underwriters in this Agreement may be cancelled at, or at any time prior to, any Closing Time by Citigroup and Deutsche Bank. Notice of such cancellation will be given to the ~~Representatives~~ Company and ~~their counsel: (i) With respect to the perfection of the Company’s interest~~ each Selling Shareholder in ~~the Receivables, the perfection of the Master Trust Trustee’s interest~~ writing or by facsimile or by telephone confirmed in ~~the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement~~writing or by facsimile. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Sponsorship and Underwriting Agreement (Intercontinental Hotels Group PLC /New/)

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~~ made by the Seller and SC herein as of the date hereof and the Closing Date, to the accuracy of the representations and warranties of the Issuer contained in each Transaction Document to which it is a party as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer~~ Seller and ~~the Seller~~ SC made pursuant to the provisions thereof, to the performance by the ~~Company, the Issuer~~ Seller and ~~the Seller~~ SC in all material respects of their respective obligations hereunder and to the following additional conditions precedent: (a) The ~~Representatives~~ Underwriters shall have received, with respect to each of the ~~Company~~Seller and SC, a certificate, dated the Closing Date, of an authorized officer of each of the ~~Company~~ Seller and SC, as applicable, in which such officer, to the best of his or her knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Company~~ Seller or SC, as applicable, in this Underwriting Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the ~~Company~~ Seller or SC, as applicable, 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 ~~and remains~~ effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, ~~and~~ (iv) ~~since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business,~~ except as set forth in or contemplated in the ~~Preliminary Prospectus (references to~~ Prospectus, since May 31, 2023, the performance of SC’s outstanding securitized transactions and the credit quality of the receivables underlying such securitized transactions have not materially deteriorated from the delinquency and credit loss data presented in the Preliminary ~~Prospectus in this clause include any supplements thereto).~~ Prospectus, (bv) ~~The Representatives shall have received~~no Event of Default or Servicer Replacement Event or event or condition which would, with ~~respect to the Seller~~notice or lapse of time, or both, become an Event of Default or a ~~certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his~~ Servicer Replacement Event has occurred or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, is continuing and (~~iii~~vi) since the Time of Sale, each of the Seller and SC continues to be a direct or indirect subsidiary of Banco Santander, S.A. or its successor in interest and there has been no material adverse change in the condition (financial or otherwise) of the Seller’s ~~credit card~~ or SC’s, as applicable, automobile finance business, except as set forth in or contemplated in the Preliminary ~~Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto)~~Prospectus. (cb) The ~~Representatives~~ Underwriters shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to SC and the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives)Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to: certain corporate matters, perfection matters, matters related to the creation of a security interest, securities law matters, 1940 Act matters, tax matters and enforceability matters. Such counsel shall also provide a “negative assurance” letter, dated as of the Closing Date, concerning the Registration Statement, the Preliminary Prospectus, the Ratings Free Writing Prospectus and the Prospectus, in form and substance reasonably satisfactory to the ~~Representatives~~ Representative. (c) The Underwriters shall have received an opinion or opinions of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel for SC and ~~their counsel~~the Seller, dated the Closing Date, in form and substance satisfactory to the ~~effect that:~~Representative, with respect to certain true sale and nonconsolidation matters. (d) The Underwriters shall have received from Sidley Austin LLP, a favorable opinion dated the Closing Date, with respect to such matters as the Representative may reasonably require; and the Seller and SC shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass on all such matters. (e) The Underwriters shall have received an opinion from ▇▇▇▇▇, Kultgen, Brophy, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to SC and the Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to certain corporate matters relating to SC and the Seller. (f) The Underwriters shall have received an opinion or opinions from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special Delaware counsel to the Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to: (i) certain matters under Delaware law with respect to the Seller and the authority of the Seller to file a voluntary bankruptcy petition; and (ii) certain corporate matters with respect to the Seller. (g) On or before the Closing Date, (i) a nationally recognized independent accounting firm acceptable to the Representative shall have furnished to the Underwriters letters relating to (A) the Preliminary Prospectus, dated as of the date of the Preliminary Prospectus, and (B) the Prospectus, dated as of the date of the Prospectus, regarding certain specified procedures performed with respect to the Issued Notes and the Receivables, each in form and substance satisfactory to the Representative, and (ii) the Accounting Firm shall have furnished to the Representative the Accountant’s Due Diligence Report. (h) On the Closing Date, the Representative shall have received evidence satisfactory to it that UCC-1 financing statements will be filed on the Closing Date or within ten days thereafter with the appropriate UCC filing offices in the State of Delaware and the State of Illinois reflecting (A) the transfer of Receivables and other related property from SC to the Seller, (B) the transfer of Receivables and other related property from the Seller to the Issuer and (C) the pledge of the Receivables and other related property by the Issuer in favor of the Indenture Trustee. (i) ~~Capital One Bank (USA)~~The Representative shall have received evidence satisfactory to it that on or before the Closing Date, ~~National Association is a national banking association under the laws~~ all applicable UCC termination statements relating to liens of creditors of the ~~United States~~Seller, the Issuer, SC or any other person on the Receivables have been filed with (or have been sent for filing on the Closing Date or the next Business Day to) the appropriate filing offices, and the ~~Bank has, in all material respects~~Representative shall have received on or before the Closing Date contractual releases or releases terminating liens of creditors of the Seller, the ~~power to own its assets and operate its business as described in the Disclosure Materials~~Issuer, ~~and the Bank had at all relevant times and now has, the power to acquire, own and service~~ SC or any other person on the Receivables. (iij) The ~~Seller has~~ Underwriters shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., counsel to the ~~power~~ Indenture Trustee, dated the Closing Date, in form and substance satisfactory to ~~execute and deliver each of~~ the ~~Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein~~Representative. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (dk) The ~~Representatives~~ Underwriters shall have received an opinion or opinions of ▇▇▇▇▇▇~~▇ and~~ ▇▇, ▇▇▇▇▇▇ ~~LLP~~& ▇▇▇▇▇▇, ~~special~~ P.A., counsel ~~for~~ to the ~~Company~~ Issuer and the ~~Seller~~Owner Trustee, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller in accordance with its termsRepresentative. (iil) 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion ~~or opinions~~ of ~~McGuireWoods LLP, Virginia~~ in-house counsel to the ~~Seller and the Company~~Asset Representations Reviewer, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementRepresentative. (iim) ~~With respect~~ The Notes shall have received the ratings indicated in the Ratings Free Writing Prospectus (as defined in Section 16(a)(i) hereof) from the nationally recognized statistical rating organizations named therein. (n) The Underwriters shall have received such information, certificates and documents as the Underwriters may reasonably request. (o) On the Closing Date, the Underwriters shall have received a fully executed copy of each of the Transaction Documents. (p) The Issuer shall have delivered to ~~certain Virginia tax consequences relating~~ DTC (or an approved custodian therefor) each of the global Notes described in Section 3 hereof, duly executed by the Issuer and authenticated by the Indenture Trustee. (q) The Issuer shall have executed and delivered to DTC a standard “letter of representations” sufficient to cause DTC to qualify each Class of Notes for inclusion in DTC’s book-entry registration and transfer system, and each Class of Notes shall have been approved by DTC for inclusion on its book-entry registration and transfer system. (r) The Trust Accounts (as defined in Appendix A to the Sale and Servicing Agreement) shall have been established in accordance with the terms of the Sale and Servicing Agreement. (s) The Prospectus shall have been filed as required by Section 2(a) hereof, and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Seller, SC or any Underwriter, threatened by the Commission or by any authority administering any state securities or blue sky law, and any requests for additional information (to be included in the Prospectus or the Registration Statement or otherwise) shall have been complied with to the satisfaction of the Underwriters. (t) The Indenture shall have been qualified pursuant to the Trust Indenture Act. (u) All actions required to be taken and all filings required to be made by the Issuer, the Seller and SC under the Act before the Closing Date for the issuance of the Issued Notes~~. (iii) To~~ , including any Issued Notes retained by the ~~effect that~~ Depositor or an affiliate of the ~~Company is a limited liability company~~ Depositor, shall have been duly ~~organized and~~ taken or made. If any of the conditions specified in ~~existence under the laws of Virginia and the Company has,~~ this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided in this Underwriting Agreement, or if any of the opinions or certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters, this Underwriting Agreement and all its obligations hereunder may be canceled at, or at any time before, the ~~limited liability company power~~ Closing Date by the Underwriters. Notice of such cancellation shall be given to ~~own its assets and operate its business as described in~~ the ~~Disclosure Materials, and had at all relevant times, and now has~~Issuer, the ~~limited liability company power to acquire~~ Seller and ~~own the Receivables and its interest~~ SC in ~~any Collateral Certificate transferred~~ writing or ~~proposed to be transferred to the Issuer as described~~ by telephone or facsimile confirmed in ~~the Disclosure Materials~~writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (Santander Drive Auto Receivables Trust 2023-3)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Class A Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer~~ Seller and ~~the Seller~~ COAF herein as of the date hereof and the Closing Date, to the accuracy of the representations and warranties of the Owner Trustee contained in each Transaction Document to which it is a party as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer~~ Seller and ~~the Seller~~ COAF made pursuant to the provisions thereof, to the performance by the ~~Company, the Issuer~~ Seller and ~~the Seller~~ COAF in all material respects of ~~their~~ the obligations hereunder and to the following additional conditions precedent: (a) The ~~Representatives~~ Representative shall have received, with respect to each of the ~~Company~~Seller and COAF, a certificate, dated the Closing Date, of an authorized officer of each of the ~~Company~~ Seller and COAF, as applicable, in which such officer, to the best of his or her knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Company~~ Seller or COAF, as applicable, in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the ~~Company~~ Seller or COAF, as applicable, 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 ~~and remains~~ effective, no stop ~~order~~ older suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the ~~Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ date of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of SaleProspectus, there has been no material adverse change in the condition (financial or otherwise) of the Seller~~’s credit card~~ 's or COAF's, as applicable, automobile loan business, except as set forth in or contemplated in the ~~Preliminary~~ Prospectus (references to the ~~Preliminary~~ Prospectus in this clause include any ~~amendments and~~ supplements thereto). (cb) The ~~Representatives~~ Representative shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of May▇▇, ▇ro▇▇ & Pla▇▇, ▇~~▇▇ and ▇▇▇▇▇▇ LLP, special~~ pecial counsel ~~for the Company~~ to COAF and the Seller, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the ~~Representatives~~ Representative and ~~their~~ its counsel, to the effect ~~that: (i) Each of~~ that the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in ~~the Preliminary Prospectus and~~ the Prospectus under the ~~headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to~~ heading "Certain Legal Aspects of the ~~extent relating to federal income tax consequences),~~ Receivables -- Transfer of Receivables," to the extent they constitute matters of Texas law or legal conclusions with respect ~~thereto~~to Texas law, have been reviewed by such counsel and are correct in all material respects. (vii) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus). In rendering such ~~opinion,~~ opinion counsel may (xi) as to matters involving the application of laws other than the laws of any jurisdiction other than ~~New York and~~ the ~~United States~~ State of ~~America~~Texas, assume the conformity of such laws with the laws of ~~New York~~ the State of Texas and (yii) rely as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the Trust, the Seller and ~~the Company and~~ public ~~officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto)~~officials. (ec) The ~~Representatives~~ Representative shall have received an opinion ~~or opinions~~ of ~~McGuireWoods LLP~~May▇▇, ~~Virginia~~ ▇rown & Pla▇▇, ▇pecial counsel to ~~the Seller~~ COAF and the ~~Company~~Seller, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the ~~Representatives~~ Representative and ~~their~~ its counsel:, with respect to: certain corporate matters, perfection matters, matters related to the creation of a security interest, securities law matters, Investment Company Act matters, tax matters and enforceability matters (including with respect to the guaranty, dated the Closing Date (the "Guaranty") of Capital One Financial Corporation ("COFC"), in favor of the Indenture Trustee) (d) The Representative shall have received an opinion or opinions of May▇▇, ▇ro▇▇ & Pla▇▇, ▇pecial counsel for the Seller and COAF, dated the Closing Date, in form and substance satisfactory to the Representative and its counsel, substantially to the effect that: (i) the transfer of the Receivables by COAF to the Seller and by the Seller to the Trust would be characterized as a true sale or contribution thereof and (ii) in the event of an involuntary or voluntary bankruptcy case of COAF under the United States Bankruptcy Code, a bankruptcy court would not disregard the separate existence of COAF and the Seller so as to order the substantive consolidation of the assets and liabilities of the Seller with the bankruptcy estate of COAF. (e) The Representative shall have received from Dechert, a favorable opinion dated the Closing Date, with respect to such matters as the Representative may reasonably require; and the Seller and COAF shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass on all such matters. (f) The Representative shall have received an opinion from Joh▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., ▇eneral Counsel to COFC, COAF and the Seller, dated the Closing Date, in form and substance satisfactory to the Representative and its counsel, with respect to certain corporate matters relating to COFC, COAF and the Seller. (g) The Representative shall have received an opinion or opinions from Ric▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Seller, dated the Closing Date, in form and substance satisfactory to the Representative and its counsel, with respect to: (i) certain matters under Delaware law with respect to the Seller and the authority of the Seller to file a voluntary bankruptcy petition, (ii) certain corporate matters with respect to the Seller, (iii) certain matters with respect to the security interest of the Owner Trustee and the Indenture Trustee, respectively, in the Receivables. (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 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 Trust, COAF and the Seller) set forth in the Prospectus Supplement, agrees with the accounting records of the Trust, COAF and the Seller, excluding any questions of legal interpretation. (i) ~~With respect~~ The Representative shall have received evidence satisfactory to it that, on or before the ~~perfection~~ Closing Date, UCC-1 financing statements have been filed (or are being filed on the Closing Date) in the offices of the ~~Company’s interest in~~ State Corporation Commission of the ~~Receivables~~Commonwealth of Virginia, the ~~perfection~~ Secretary of State of Delaware and the ~~Master Trust Trustee’s interest in~~ Secretary of State of Texas, reflecting the transfer of the Receivables and related collateral from COAF to the ~~Collateral Certificate~~ Seller, the Seller to the Owner Trustee and ~~certain other matters relating~~ the Owner Trustee to ~~any applicable credit enhancement~~the Indenture Trustee. (iij) ~~With respect~~ The Representative shall have received evidence satisfactory to ~~certain Virginia tax consequences relating to~~ it that on or before the ~~issuance~~ Closing Date, all applicable UCC termination statements or releases terminating liens on the Receivables of creditors of the ~~Notes~~Seller, the Owner Trustee, COAF or any other person have been filed in the appropriate filing offices. (~~iii~~k) To The Representative shall have received an opinion of Cha▇▇▇▇ & Cut▇▇▇, ▇ounsel to the ~~effect that~~ Indenture Trustee, dated the ~~Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has~~Closing Date, in ~~all material respects,~~ form and substance satisfactory to the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables Representative and its ~~interest in any Collateral Certificate transferred or proposed to be transferred to the Issuer as described in the Disclosure Materials~~counsel. (iv1) To The Representative shall have received an opinion of Ric▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the ~~effect that~~ Owner Trustee, dated the ~~Company had at all relevant time~~Closing Date, in form and ~~now has,~~ substance satisfactory to the ~~limited liability company power to execute, deliver~~ Representative and ~~perform the terms and provisions of each Program Agreement to which it is a party~~its counsel. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (Capital One Auto Receivables LLC)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus and the Prospectus and all other Time of Sale Information shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus, as of the Time of Sale, and to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Potomac ▇▇▇▇▇ Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and ~~their counsel:~~the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (j) The Underwriters shall have received from KPMG LLP, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) ~~With respect to certain Virginia tax consequences relating~~ letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to the ~~issuance of~~ Underwriters and counsel for the ~~Notes~~Underwriters. (~~iii~~k) To The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the ~~effect~~ Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (n) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (o) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Offered Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (CFCRE 2016-C6 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ hereunder shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received,~~ been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission. (b) The Company shall have delivered to ~~the Company,~~ you a certificate, dated the Closing Date, of ~~an authorized officer~~ any president or vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company's knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make~~ the ~~statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing~~ Prospectus, as of ~~its date or as of~~ the ~~date of such opinion~~Closing Date, ~~contained or~~ contains any untrue statement of a material fact ~~or omitted~~ or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has~~ c) a good standing certificate regarding the Company from the Secretary of State of the State of Delaware, dated not ~~been requested to and does not make any comment in this paragraph with respect~~ earlier than 30 days prior to the ~~financial statements~~Closing Date; (d) an officer's certificate, ~~supporting schedules~~ dated the Closing Date and ~~other financial~~ signed by the secretary or ~~statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ an assistant secretary of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer's certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received from Cadwalader, Wickersham & Taft LLP, counsel for ▇▇▇ ▇▇▇▇▇▇y, ▇ ▇▇vorable opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (f) The Underwriters shall have received from in-house counsel for the Company, a favorable opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (a) may express counsel's reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (b) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from counsel for each of the Master Servicers, the Special Servicer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions ~~of McGuireWoods~~ shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (h) The Underwriters shall have received from Cadwalader, Wickersham & Taft LLP, ~~Virginia~~ counsel for ▇▇▇ ▇▇▇▇▇▇rit▇▇▇, a favorable opinion, dated the Closing Date and satisfactory in form and substance to the ~~Seller~~ Underwriters. (i) The Underwriters shall have received from Ernst & Young, certified public accountants, a letter dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters stating in effect that using the assumptions and methodology used by the Company, all of which shall be described in such letter, they have recalculated such numbers and percentages set forth in the Preliminary FWP, the Revised FWPs and the ~~Company~~Prospectus as the Underwriters may reasonably request and as are agreed to by Ernst & Young, compared the results of their calculations to the corresponding items in the Preliminary FWP, the Revised FWPs and the Prospectus, and found each such number and percentage set forth in the Preliminary FWP, the Revised FWPs and the Prospectus to be in agreement with the results of such calculations. (j) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated on such Schedule I by the rating agency or agencies indicated. (k) The Underwriters shall have received from counsel for each Loan Seller a favorable opinion, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to counsel for the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iil) ~~With respect to certain Virginia tax consequences relating~~ All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the ~~issuance~~ Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, opinions, certificates and documents as they may reasonably request. If any of the ~~Notes. (iii) To the effect that the Company is a limited liability company duly organized and~~ conditions specified in ~~existence under the laws of Virginia and the Company has,~~ this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (COMM 2007-C9 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the Offered Notes ~~will~~ shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller herein as of the date hereof and the Closing Date~~Company contained in this Agreement, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional conditions ~~precedent~~applicable to the Note Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted, ~~with respect~~ or to the knowledge of the Company, threatened by the Commission. (b) The Company shall have furnished to the Representatives a ~~certificate~~certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of ~~an authorized officer of~~ such certificate has carefully examined the Transaction Documents to which the Company ~~in which such officer~~is a party, and that, to the best of ~~his or her~~ such person’s knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of the Company in this Agreement and the Transaction Documents to which the Company is a party are true and correct in all material ~~respects on~~ respects, and ~~as of the Closing Date, (ii)~~ the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date. (c) The Representatives shall have received on the Closing Date a signed opinion of M▇▇▇▇ ▇▇▇▇▇ LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware; Holding is a corporation validly existing and in good standing under the laws of the State of Delaware; and each of the Company and Holding has full power and authority to enter into and perform its obligations under this Agreement and the Transaction Documents and to consummate the transactions contemplated hereby and thereby; (ii) the execution and delivery by each of the Bank, Synchrony, Holding, the Issuer and the Company (each, a “Specified Entity”) of this Agreement (if applicable) and the Transaction Documents to which it is a party, and the consummation by each of the transactions contemplated thereby, will not violate any applicable law, statute or governmental rule or regulation; (iii) the execution and delivery by each Specified Entity of this Agreement (if applicable) and the Transaction Documents to which it is a party do not, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of this opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (iv) the execution and delivery by each of the Company and Holding of this Agreement and the Transaction Documents to which it is a party do not, or did not, as applicable, and the consummation by the Company of the transactions contemplated thereby to occur on the date of this opinion will not, violate or contravene any term or provision of the Certificate of Formation or the Limited Liability Company Agreement of the Company or the Certificate of Incorporation or By-Laws of Holding; (v) each of the Transaction Documents (other than the Trust Agreement) constitutes a legal, valid and binding obligation of each of the Bank, Synchrony, the Issuer, the Company and Holding that is a party thereto, enforceable against each such party in accordance with its terms; (vi) each of the Offered Notes is in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and, when delivered against payment of the consideration specified herein, will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture; (vii) the Issuer (A) is not now, and immediately following the issuance of the Offered Notes pursuant to the Indenture will not be, required to be registered as an “investment company” under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and, as of the Closing Date, the Issuer satisfies the requirements to rely on the exemption from the definition of “investment company” provided by Section 3(c)(5)(A) under the Investment Company Act, although there may be additional exclusions or exemptions available to the Issuer and (~~iii~~B) is not now, and immediately following the issuance of the Offered Notes pursuant to the Indenture will not be, a “covered fund” as defined in the final regulations issued December 10, 2013, implementing the “V▇▇▇▇▇▇ Rule” (Section 619 of the D▇▇▇-F▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act); (viii) the Registration Statement became effective under the Act not more than three (3) years prior to the Closing Date, and the Prospectus has been ~~declared~~ filed with the Commission pursuant to Rule 424(b) thereunder in the manner and ~~remains effective~~within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~has been issued~~ and the Prospectus and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto).instituted; (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (iix) the ~~representations and warranties of the Seller~~ statements in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~The Trust—Perfection and Priority of Security Interests,” “—Conservatorship and Receivership; Bankruptcy,” “Certain Considerations for ERISA and Other U.S. Benefit Plans” and “~~Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇~~ Structural Summary—Certain Considerations for ERISA and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus under the headings “Certain Legal Aspects of the Receivables” and “Other U.S. Benefit ~~Plan Investors~~Plans,” 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. (viii) 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. (ix) 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.; (x) In the ~~event~~ Transaction Documents and the ~~Federal Deposit Insurance Corporation were~~ Offered Notes conform in all material respects to ~~be appointed as conservator or receiver for~~ the ~~Bank pursuant to Section 11(c~~descriptions thereof contained in the Prospectus; (xi) the Indenture has been duly qualified under the Trust Indenture Act of ~~the Federal Deposit Insurance Act~~1939, as amended, ~~in a matter properly briefed~~ and ~~presented~~ complies as to ~~a federal court~~ form with ~~jurisdiction over such conservatorship or receivership,~~ the ~~court, exercising reasonable judgment after full consideration~~ Trust Indenture Act of ~~all relevant factors in a properly presented~~ 1939 and ~~argued case, would hold that~~ the ~~Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property~~ rules and regulations of the ~~Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or~~ Commission thereunder; and (Bxii) ~~avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives~~ each of ~~the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning~~ the Registration Statement, as of its Effective Date, and the ~~Preliminary~~ Prospectus, as of its date, complied as to form in all material respects with the ~~Ratings Issuer Free Writing Prospectus~~ requirements of the Act and the ~~Prospectus~~ rules and ~~have considered~~ regulations under the ~~matters~~ Act, except that such counsel need not express any opinion as to (A) the financial and statistical data included therein or excluded therefrom, (B) any other documents or information incorporated by reference into the Registration Statement or the Prospectus, (C) any exhibits to the Registration Statement and (D) compliance by the Company and each issuing entity previously established, directly or indirectly, by the Company or any affiliate of the Company with the registrant requirements set forth in General Instruction I.A.2 of Form SF-3 as of any required date and, except as, and to ~~be stated therein~~ the extent set forth in paragraphs (ix) and ~~the matters stated therein~~(x), ~~although they are~~ such counsel need not ~~independently verifying~~ assume any responsibility for the accuracy, completeness or fairness of such statements (except as stated in paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration ~~Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement or the ~~Prospectus or, in the case of the Preliminary~~ Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (ed) The Representatives shall have received ~~an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated~~ on the Closing ~~Date~~Date a signed opinion of P▇▇▇ ▇▇▇▇▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~With respect to~~ the ~~perfection~~ Bank is (A) duly organized and validly existing as a Federal savings association in good standing under the laws of the ~~Company’s interest~~ United States and (B) duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the ~~Receivables~~conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the ~~perfection of the Master Trust Trustee’s interest in~~ failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Receivables ~~and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~Sale Agreement; (ii) ~~With respect to certain Virginia tax consequences relating to~~ the ~~issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized~~ Bank has all requisite corporate power and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power authority to execute, deliver and perform its obligations under the ~~terms~~ Receivables Sale Agreement and ~~provisions~~ to consummate the transactions provided for therein; (iii) the execution, delivery and performance by the Bank of ~~each Program~~ the Receivables Sale Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite corporate action on the part of the Bank; (iv) the Receivables Sale Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (v) the execution, delivery and performance by the Bank of the Receivables Sale Agreement and the consummation by the Bank of the transactions provided for therein, do not and will not (A) contravene, violate or constitute a default under any provision of the certificate of incorporation or by-laws of the Bank, (B) to the best of such counsel’s knowledge, contravene or violate any judgment, writ, injunction, order, ruling or decree, to which the Bank or its property is subject, (C) to the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement and the Receivables Sale Agreement or (D) contravene, violate, conflict with or constitute a default under any material indenture, contract, lease, mortgage, deed of trust or other instrument or agreement of which such counsel is aware to which the Bank is a party or by which the Bank is bound. (e) The Representatives shall have received on the Closing Date a signed opinion of P▇▇▇ ▇▇▇▇▇▇, Structured Finance Counsel for Synchrony, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives to the effect that: (i) Synchrony is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Servicing Agreement, the Administration Agreement and the Contribution Agreement in the various capacities set forth therein; (ii) the execution, delivery and performance by Synchrony of the Servicing Agreement, the Administration Agreement and the Contribution Agreement and the consummation by Synchrony of the transactions contemplated thereby have been duly authorized by all necessary corporate action on the part of Synchrony; (iii) the Servicing Agreement, the Administration Agreement and the Contribution Agreement have been duly and validly executed and delivered by Synchrony; and (iv) the execution and delivery by Synchrony of the Servicing Agreement, the Administration Agreement and the Contribution Agreement to which it is a ~~party~~party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or by-laws of Synchrony, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument or agreement to which Synchrony is a party or by which Synchrony is bound or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over Synchrony. (f) The Representatives shall have received on the Closing Date a signed opinion of M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Associate General Counsel, Securitizations, Capital Markets, GE Capital Global, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated as of the Closing Date and addressed to the Representatives to the effect that: (i) GE Capital Global is validly existing and in good standing as a limited liability company under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Performance Guaranty; (ii) the execution, delivery and performance by GE Capital Global of the Performance Guaranty and the consummation by GE Capital Global of the transactions contemplated thereby have been duly authorized by all necessary corporate action and delivered by GE Capital Global; (iii) the Performance Guaranty has been duly and validly executed and delivered by GE Capital Global; (iv) the execution and delivery by GE Capital Global of the Performance Guaranty and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of formation or limited liability company agreement of GE Capital Global, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which GE Capital Global is a party or by which GE Capital Global is bound or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over GE Capital Global. (g) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & F▇▇▇▇▇, P.A., counsel for the Owner Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Owner Trustee is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware; (ii) the Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and as trustee under the Administration Agreement, and to consummate the transactions contemplated thereby; (iii) the Owner Trustee has duly authorized, executed and delivered the Trust Agreement and the Administration Agreement, as trustee, and the Trust Agreement 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 of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee 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 federal laws of the United States governing the trust powers of the Owner Trustee; and (v) To neither the ~~effect that no consent~~execution, delivery and performance by the Owner Trustee of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee contemplated thereby, requires the consent or approval ~~or authorization~~ of, ~~or filing with, any Virginia governmental agency or authority or any Virginia court is required~~ 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 under the laws of the ~~Seller under applicable Virginia~~ State of Delaware or the federal laws of the United States governing the trust powers of the Owner Trustee. (h) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & F▇▇▇▇▇, P.A., special Delaware counsel for th

Appears in 1 contract

Sources: Underwriting Agreement (Synchrony Credit Card Master Note Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or cause to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or cause to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicers, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from Deloitte & Touche LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (DBUBS 2011-Lc3 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus, the Prospectus and all other Time of Sale Information shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus as of the Time of Sale, and ~~their~~ to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the ~~Receivables~~ Preliminary Prospectus and the ~~Collateral Certificate~~ Prospectus with respect to each such party with the requirements of Regulation AB and ~~certain other matters relating~~ that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to ~~any applicable credit enhancement~~state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With~~ The Underwriters shall have received from counsel for the Third-Party Purchaser a favorable opinion, dated the Closing Date, with respect to ~~certain Virginia tax consequences relating~~ such matters as the Underwriters shall have reasonably requested, which will include an opinion that the Preliminary Prospectus as of the Time of Sale and the Prospectus as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the ~~issuance of~~ Underwriters or accompanied by reliance letters to the ~~Notes~~Underwriters or shall state that the Underwriters may rely upon them. (~~iii~~k) To The Underwriters shall have received from S▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the ~~effect~~ Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters. (l) The Underwriters shall have received from the Accountants, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) letters dated on or prior to the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (m) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Term Sheet (or such other FWP) by the rating agency or agencies indicated therein. (n) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (o) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (p) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (q) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (r) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (s) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (Benchmark 2025-V14 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus Supplement shall have been filed with the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, ~~with respect~~ to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus Supplement and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or cause to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or cause to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Sidley Austin LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (f) The Underwriters shall have received from Sidley Austin LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus, as of the date of the Prospectus Supplement and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the ~~Representatives~~ Underwriters, which will include an opinion as to the compliance of the disclosure with respect to each such party with the requirements of Regulation AB and ~~their counsel:~~that such disclosure does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein (in the case of any item comprising the Time of Sale Information, when read in connection with the other items comprising the Time of Sale Information delivered to investors in the Offered Certificates as of the applicable Time of Sale), in light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (i) ~~With respect~~ The Underwriters shall have received from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, special counsel for the Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iij) ~~With respect~~ The Underwriters shall have received from Ernst & Young LLP, certified public accountants, letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to ~~certain Virginia tax consequences~~ the Underwriters and counsel for the Underwriters. (k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or agencies indicated therein. (l) The Underwriters shall have received from counsel to each Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (m) The Underwriters shall have received from counsel to each Loan Seller, its letter relating to the ~~issuance~~ Time of Sale Information, as of the ~~Notes~~Time of Sale, and to the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (~~iii~~n) To The Underwriters shall have received from each Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the ~~effect that~~ Underwriters. (o) All proceedings in connection with the transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (p) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company is or a ~~limited liability company duly organized and~~ Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in ~~existence under~~ the ~~laws~~ reasonable judgment of ~~Virginia~~ such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information and the ~~Company has,~~ Prospectus. (q) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (COMM 2012-Ccre1 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus, the Prospectus and all other Time of Sale Information shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Sidley Austin LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus as of the Time of Sale, and ~~their~~ to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Outside Primary Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the ~~Receivables~~ Preliminary Prospectus and the ~~Collateral Certificate~~ Prospectus with respect to each such party with the requirements of Regulation AB and ~~certain other matters relating~~ that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to ~~any applicable credit enhancement~~state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With~~ The Underwriters shall have received from counsel for the Third-Party Purchaser a favorable opinion, dated the Closing Date, with respect to ~~certain Virginia tax consequences relating~~ such matters as the Underwriters shall have reasonably requested, which will include an opinion that the Preliminary Prospectus as of the Time of Sale and the Prospectus as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the ~~issuance of~~ Underwriters or accompanied by reliance letters to the ~~Notes~~Underwriters or shall state that the Underwriters may rely upon them. (~~iii~~k) To The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the ~~effect~~ Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters. (l) The Underwriters shall have received from the Accountants, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) letters dated on or prior to the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (m) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Term Sheet (or such other FWP) by the rating agency or agencies indicated therein. (n) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (o) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (p) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (q) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (r) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (s) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (Benchmark 2024-V5 Mortgage Trust)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder to purchase ~~and pay for~~ the ~~Notes will~~ Certificates shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date ~~hereof~~ hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date, as of the date the Prospectus Supplement or any supplement thereto is filed with the Commission prior to the Closing Date and as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates delivered pursuant to the provisions ~~thereof~~hereof, to the performance ~~by the Company, the Issuer and the Seller~~ in all material respects by the Company of ~~their~~ its obligations hereunder and to satisfaction, as of the Closing Date, of the following additional ~~conditions precedent~~conditions: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have ~~received~~been issued and not withdrawn and no proceedings for that purpose shall have been instituted or, ~~with respect~~ to the Company's knowledge, threatened; and the Prospectus Supplement shall have been filed or transmitted for filing with the Commission in accordance with Rule 424 under the ▇▇▇▇ ▇▇▇. (b) The Company shall have delivered to the Underwriters a ~~certificate~~certificate of the Company, ~~dated the Closing Date, of~~ signed by an authorized officer of the Company ~~in which such officer~~and dated the Closing Date, to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ effect that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on at and as of the Closing Date with the same effect as if made on the Closing Date, ; and (ii) the Company has ~~complied~~ in all material respects complied with all the agreements and satisfied all the conditions on its part that are required hereby to be performed or satisfied ~~hereunder~~ at or ~~before~~ prior to the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (bc) The ~~Representatives~~ Underwriters shall have ~~received,~~ received with respect to the ~~Seller~~Company a good standing certificate from the Secretary of State of the State of Delaware, dated not earlier than ten (10) days prior to the Closing Date. (d) The Underwriters shall have received from the Secretary or an assistant secretary of the Company, in his individual capacity, a certificate, dated the Closing Date, ~~of an authorized officer of the Seller in which such officer,~~ to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ effect that: (i) ~~the representations and warranties~~ each individual who, as an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Pooling and Servicing Agreement, either of the Mortgage Loan Purchase Agreements or any other document or certificate delivered on or before the Closing Date in ~~this~~ connection with the transactions contemplated herein, in the Pooling and Servicing Agreement ~~are true~~ or in either of the Mortgage Loan Purchase Agreements, was at the respective times of such signing and ~~correct in all material respects on~~ delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (ii) no event (including, without limitation, any act or omission on the ~~Seller~~ part of the Company) has ~~complied~~ occurred since the date of the good standing certificate referred to in ~~all material respects with all agreements~~ paragraph (c) above which has affected the good standing of the Company under the laws of the State of Delaware. Such certificate shall be accompanied by true and ~~satisfied all conditions~~ complete copies (certified as such by the Secretary or an assistant secretary of the Company) of (i) the certificate of incorporation and by-laws of the Company, as in effect on ~~its part to be performed or satisfied hereunder at or before~~ the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) ~~The Seller has~~ the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party has been duly authorized by all necessary limited liability company action on the part resolutions of the Company and ~~has been duly executed and delivered by~~ any required shareholder consent relating to the ~~Company and when the Collateral Certificate has been authenticated and delivered~~ transactions contemplated in ~~accordance with the terms of the Pooling and Servicing~~ this 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 and the ~~Collateral pursuant to the Indenture~~Mortgage Loan Purchase Agreements. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (de) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of ▇~~from Sidley ▇▇▇▇▇▇ ~~and~~ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the ~~Company and the Seller~~Company, a favorable opinion, dated the Closing Date, substantially in the form attached hereto as Exhibit A-1. (f) The Underwriters shall have received copies of all legal opinion letters delivered by Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Company, to the Rating Agencies in connection with the issuance of the Certificates, accompanied in each case by a letter signed by Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP stating that the Underwriters may rely on such opinion letter as if it were addressed to them as of date thereof. (g) The Underwriters shall have received from in-house counsel for the Company, a favorable opinion, dated the Closing Date, substantially in the form attached hereto as Exhibit A-2. (h) The Underwriters shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Company, a letter, dated the Closing Date, substantially in the form attached hereto as Exhibit A-3, regarding certain information in the Registration Statement and the Prospectus. (i) The Underwriters shall have received from Deloitte & Touche LLP, certified public accountants, a letter dated the Closing Date and satisfactory in form and substance ~~reasonably satisfactory~~ to the ~~Representatives~~ Underwriters and their counsel, to the ~~effect that~~following effect: (i) ~~Each~~ they have performed certain specified procedures as a result of which they have determined that such information of an accounting, financial or statistical nature set forth in the Prospectus Supplement, as was agreed upon by the Underwriters, agrees with the data sheet or computer tape prepared by or on behalf of the Mortgage Loan Sellers, unless otherwise noted in such letter; and (ii) they have compared the data contained in the data sheet or computer tape referred to in the immediately preceding clause (i) to information contained in an agreed upon sampling of the Mortgage Loan files and in such other sources as shall be specified by them, and found such data and information to be in agreement in all material respects, unless otherwise noted in such letter. (j) The Underwriters shall have received, with respect to each of the Master Servicer, the Special Servicer, the Trustee and the Fiscal Agent, a favorable opinion of counsel, dated the Closing Date, addressing: the valid existence of such party under the laws of its jurisdiction of organization; the due authorization, execution and delivery of the Pooling and Servicing ~~Agreement~~Agreement by such party; the enforceability of the Pooling and Servicing Agreement against such party, subject to such limitations as are reasonably acceptable to the Underwriters and their counsel; and such other matters as the Underwriters and their counsel may reasonably request. Counsel rendering each such opinion may express its reliance as to factual matters on representations and warranties made by, and on certificates or other documents furnished by officers and/or authorized representatives of, the ~~Asset Representations Review Agreement,~~ parties to the ~~Transfer~~ Pooling and Servicing Agreement and on certificates furnished by public officials and, further, may assume the ~~Receivables Purchase Agreement constitutes the legal~~due authorization, ~~valid~~ execution and ~~binding obligation~~ delivery of the ~~Company~~ instruments and documents referred to therein by the ~~Seller under~~ parties thereto other than the party on behalf of which such opinion is being rendered. Each such opinion need cover only the laws of the State of New York, ~~enforceable against~~ the ~~Company~~ laws of the jurisdiction of organization for the party on behalf of which such opinion is being rendered and the ~~Seller in accordance with its terms~~federal law of the United States. (iik) The Underwriters shall have been furnished with all documents, certificates and opinions required to be delivered by UBSWREI, UBSPF and UBS (USA) in connection with the sale ~~and delivery~~ by UBSWREI of the ~~Notes in~~ UBS Mortgage Loans to the ~~manner contemplated~~ Company, pursuant to the UBS Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to rely on each such certificate executed and delivered by ~~this Agreement and the Pooling and Servicing Agreement do not require~~ UBSWREI, UBS (A) the qualification of the Pooling and Servicing Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1USA) or ~~3(c)(7) thereof) upon which~~ any of their respective officers and representatives, to the ~~Master Trust or~~ same extent that the ~~Issuer~~Company may so rely, ~~as applicable, is relying (although other statutory or regulatory exclusions or exemptions may~~ and each such opinion addressed to the Company shall also be ~~available)~~addressed to the Underwriters. (~~iii~~l) The ~~Indenture has~~ Underwriters shall have been ~~qualified under~~ furnished with all documents, certificates and opinions required to be delivered by Holdings in connection with the ~~Trust Indenture Act~~sale by Holdings of its Mortgage Loans to the Company, pursuant to the Holdings Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to rely on each such certificate executed and delivered by Holdings or any of its officers and representatives, to the same extent that the Company may so rely, and each such opinion addressed to the Company shall also be addressed to the Underwriters. (ivm) The ~~Collateral Certificate~~Underwriters shall have been furnished with such other documents and opinions as the Underwriters may reasonably require, ~~when executed~~ for the purpose of enabling them to pass upon the issuance and ~~authenticated in accordance with the terms~~ sale of the ~~Pooling~~ Certificates as herein contemplated and ~~Servicing Agreement~~related proceedings, ~~will be duly and validly issued and outstanding and will be entitled~~ or in order to evidence the ~~benefits~~ accuracy of any of the ~~Pooling and Servicing Agreement~~representations or warranties, or the fulfillment of any of the conditions, herein contained. (vn) ~~Each~~ The Certificates shall have been assigned ratings no less than those set forth on Schedule I and such ratings shall not have been qualified, downgraded or withdrawn. If any of the conditions specified in this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, if the Company is in material breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to ~~the descriptions thereof contained~~ above or elsewhere in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct this Agreement shall not be in all material ~~respects. (vii) The statements~~ respects reasonably satisfactory in ~~the Preliminary Prospectus~~ form and ~~the Prospectus under the headings “Certain Legal Aspects of the Receivables” and “Benefit Plan Investors,”~~ substance 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their ~~counsel concerning~~ counsel, this Agreement and all obligations of the ~~Registration Statement~~Underwriters hereunder may be cancelled at, or at any time prior to, the ~~Preliminary Prospectus,~~ Closing Date by the Ratings Issuer Free Writing Prospectus 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 Underwriters. Notice of such ~~statements (except as stated in paragraphs (vi) and (vii) above). Based upon and subject~~ cancellation shall be given to the foregoing, nothing has come to such counsel’s attention to cause such counsel to believe that the Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 misleadingCompany in writing, or ~~that the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact~~ by telephone or ~~omitted to state a material fact necessary~~ telegraph confirmed in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto)writing. (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (Structured Asset Sec Corp Ii Com Mort Pas THR Cert Se 02 C7)

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~~ made by the Seller and SC herein as of the date hereof and the Closing Date, to the accuracy of the representations and warranties of the Issuer contained in each Transaction Document to which it is a party as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer~~ Seller and ~~the Seller~~ SC made pursuant to the provisions thereof, to the performance by the ~~Company, the Issuer~~ Seller and ~~the Seller~~ SC in all material respects of their respective obligations hereunder and to the following additional conditions precedent: (a) The ~~Representatives~~ Underwriters shall have received, with respect to each of the ~~Company~~Seller and SC, a certificate, dated the Closing Date, of an authorized officer of each of the ~~Company~~ Seller and SC, as applicable, in which such officer, to the best of his or her knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Company~~ Seller or SC, as applicable, in this Underwriting Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the ~~Company~~ Seller or SC, as applicable, 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 ~~and remains~~ effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, ~~and~~ (iv) ~~since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business,~~ except as set forth in or contemplated in the ~~Preliminary Prospectus (references to~~ Prospectus, since December 31, 2022, the performance of SC’s outstanding securitized transactions and the credit quality of the receivables underlying such securitized transactions have not materially deteriorated from the delinquency and credit loss data presented in the Preliminary ~~Prospectus in this clause include any supplements thereto).~~ Prospectus, (bv) ~~The Representatives shall have received~~no Event of Default or Servicer Replacement Event or event or condition which would, with ~~respect to the Seller~~notice or lapse of time, or both, become an Event of Default or a ~~certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his~~ Servicer Replacement Event has occurred or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, is continuing and (~~iii~~vi) since the Time of Sale, each of the Seller and SC continues to be a direct or indirect subsidiary of Banco Santander, S.A. or its successor in interest and there has been no material adverse change in the condition (financial or otherwise) of the Seller’s ~~credit card~~ or SC’s, as applicable, automobile finance business, except as set forth in or contemplated in the Preliminary ~~Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto)~~Prospectus. (cb) The ~~Representatives~~ Underwriters shall have received an opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to SC and the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives)Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to: certain corporate matters, perfection matters, matters related to the creation of a security interest, securities law matters, 1940 Act matters, tax matters and enforceability matters. Such counsel shall also provide a “negative assurance” letter, dated as of the Closing Date, concerning the Registration Statement, the Preliminary Prospectus, the Ratings Free Writing Prospectus and the Prospectus, in form and substance reasonably satisfactory to the ~~Representatives~~ Representative. (c) The Underwriters shall have received an opinion or opinions of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel for SC and ~~their counsel~~the Seller, dated the Closing Date, in form and substance satisfactory to the ~~effect that:~~Representative, with respect to certain true sale and nonconsolidation matters. (d) The Underwriters shall have received from Sidley Austin LLP, a favorable opinion dated the Closing Date, with respect to such matters as the Representative may reasonably require; and the Seller and SC shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass on all such matters. (e) The Underwriters shall have received an opinion from ▇▇▇▇▇, Kultgen, Brophy, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to SC and the Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to certain corporate matters relating to SC and the Seller. (f) The Underwriters shall have received an opinion or opinions from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special Delaware counsel to the Seller, dated the Closing Date, in form and substance satisfactory to the Representative, with respect to: (i) certain matters under Delaware law with respect to the Seller and the authority of the Seller to file a voluntary bankruptcy petition; and (ii) certain corporate matters with respect to the Seller. (g) On or before the Closing Date, (i) a nationally recognized independent accounting firm acceptable to the Representative shall have furnished to the Underwriters letters relating to (A) the Preliminary Prospectus, dated as of the date of the Preliminary Prospectus, and (B) the Prospectus, dated as of the date of the Prospectus, regarding certain specified procedures performed with respect to the Issued Notes and the Receivables, each in form and substance satisfactory to the Representative, and (ii) the Accounting Firm shall have furnished to the Representative the Accountant’s Due Diligence Report. (h) On the Closing Date, the Representative shall have received evidence satisfactory to it that UCC-1 financing statements will be filed on the Closing Date or within ten days thereafter with the appropriate UCC filing offices in the State of Delaware and the State of Illinois reflecting (A) the transfer of Receivables and other related property from SC to the Seller, (B) the transfer of Receivables and other related property from the Seller to the Issuer and (C) the pledge of the Receivables and other related property by the Issuer in favor of the Indenture Trustee. (i) ~~Capital One Bank (USA)~~The Representative shall have received evidence satisfactory to it that on or before the Closing Date, ~~National Association is a national banking association under the laws~~ all applicable UCC termination statements relating to liens of creditors of the ~~United States~~Seller, the Issuer, SC or any other person on the Receivables have been filed with (or have been sent for filing on the Closing Date or the next Business Day to) the appropriate filing offices, and the ~~Bank has, in all material respects~~Representative shall have received on or before the Closing Date contractual releases or releases terminating liens of creditors of the Seller, the ~~power to own its assets and operate its business as described in the Disclosure Materials~~Issuer, ~~and the Bank had at all relevant times and now has, the power to acquire, own and service~~ SC or any other person on the Receivables. (iij) The ~~Seller has~~ Underwriters shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., counsel to the ~~power~~ Indenture Trustee, dated the Closing Date, in form and substance satisfactory to ~~execute and deliver each of~~ the ~~Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein~~Representative. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (dk) The ~~Representatives~~ Underwriters shall have received an opinion or opinions of ▇▇▇▇▇▇~~▇ and~~ ▇▇, ▇▇▇▇▇▇ ~~LLP~~& ▇▇▇▇▇▇, ~~special~~ P.A., counsel ~~for~~ to the ~~Company~~ Issuer and the ~~Seller~~Owner Trustee, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller in accordance with its termsRepresentative. (iil) 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion ~~or opinions~~ of ~~McGuireWoods LLP, Virginia~~ in-house counsel to the ~~Seller and the Company~~Asset Representations Reviewer, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementRepresentative. (iim) ~~With respect~~ The Notes shall have received the ratings indicated in the Ratings Free Writing Prospectus (as defined in Section 16(a)(i) hereof) from the nationally recognized statistical rating organizations named therein. (n) The Underwriters shall have received such information, certificates and documents as the Underwriters may reasonably request. (o) On the Closing Date, the Underwriters shall have received a fully executed copy of each of the Transaction Documents. (p) The Issuer shall have delivered to ~~certain Virginia tax consequences relating~~ DTC (or an approved custodian therefor) each of the global Notes described in Section 3 hereof, duly executed by the Issuer and authenticated by the Indenture Trustee. (q) The Issuer shall have executed and delivered to DTC a standard “letter of representations” sufficient to cause DTC to qualify each Class of Notes for inclusion in DTC’s book-entry registration and transfer system, and each Class of Notes shall have been approved by DTC for inclusion on its book-entry registration and transfer system. (r) The Trust Accounts (as defined in Appendix A to the Sale and Servicing Agreement) shall have been established in accordance with the terms of the Sale and Servicing Agreement. (s) The Prospectus shall have been filed as required by Section 2(a) hereof, and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Seller, SC or any Underwriter, threatened by the Commission or by any authority administering any state securities or blue sky law, and any requests for additional information (to be included in the Prospectus or the Registration Statement or otherwise) shall have been complied with to the satisfaction of the Underwriters. (t) The Indenture shall have been qualified pursuant to the Trust Indenture Act. (u) All actions required to be taken and all filings required to be made by the Issuer, the Seller and SC under the Act before the Closing Date for the issuance of the Issued Notes~~. (iii) To~~ , including any Issued Notes retained by the ~~effect that~~ Depositor or an affiliate of the ~~Company is a limited liability company~~ Depositor, shall have been duly ~~organized and~~ taken or made. If any of the conditions specified in ~~existence under the laws of Virginia and the Company has,~~ this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided in this Underwriting Agreement, or if any of the opinions or certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters, this Underwriting Agreement and all its obligations hereunder may be canceled at, or at any time before, the ~~limited liability company power~~ Closing Date by the Underwriters. Notice of such cancellation shall be given to ~~own its assets and operate its business as described in~~ the ~~Disclosure Materials, and had at all relevant times, and now has~~Issuer, the ~~limited liability company power to acquire~~ Seller and ~~own the Receivables and its interest~~ SC in ~~any Collateral Certificate transferred~~ writing or ~~proposed to be transferred to the Issuer as described~~ by telephone or facsimile confirmed in ~~the Disclosure Materials~~writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (Santander Drive Auto Receivables Trust 2023-1)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Class A Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer~~ Seller and ~~the Seller~~ COAF herein as of the date hereof and the Closing Date, to the accuracy of the representations and warranties of the Owner Trustee contained in each Transaction Document to which it is a party as of the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer~~ Seller and ~~the Seller~~ COAF made pursuant to the provisions thereof, to the performance by the ~~Company, the Issuer~~ Seller and ~~the Seller~~ COAF in all material respects of ~~their~~ the obligations hereunder and to the following additional conditions precedent: (a) The ~~Representatives~~ Representative shall have received, with respect to each of the ~~Company~~Seller and COAF, a certificate, dated the Closing Date, of an authorized officer of each of the ~~Company~~ Seller and COAF, as applicable, in which such officer, to the best of his or her knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Company~~ Seller or COAF, as applicable, in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the ~~Company~~ Seller or COAF, as applicable, 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 ~~and remains~~ effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the ~~Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ date of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of SaleProspectus, there has been no material adverse change in the condition (financial or otherwise) of the Seller~~’s credit card~~ 's or COAF's, as applicable, automobile loan business, except as set forth in or contemplated in the ~~Preliminary~~ Prospectus (references to the ~~Preliminary~~ Prospectus in this clause include any ~~amendments and~~ supplements thereto). (cb) The ~~Representatives~~ Representative shall have received an opinion of ~~the general counsel~~Mayer, ~~deputy general counsel~~Brown, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ ~~and ▇▇▇▇▇▇ LLP~~& Maw, special counsel ~~for the Company~~ to COAF and the Seller, dated the Closing Date, in form and substance ~~reasonably~~ satisfactory to the ~~Representatives~~ Representative and ~~their~~ its counsel, to the effect ~~that: (i) Each of~~ that the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in ~~the Preliminary Prospectus and~~ the Prospectus under the ~~headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to~~ heading "Certain Legal Aspects of the ~~extent relating to federal income tax consequences),~~ Receivables -- Transfer of Receivables," to the extent they constitute matters of Texas law or legal conclusions with respect ~~thereto~~to Texas law, have been reviewed by such counsel and are correct in all material respects. . In rendering such opinion counsel may (~~vii~~i) ~~The statements in~~ as to matters involving the ~~Preliminary Prospectus and~~ application of laws other than the ~~Prospectus under~~ laws of any jurisdiction other than the ~~headings “Certain Legal Aspects~~ State of Texas, assume the ~~Receivables” and “Benefit Plan Investors,” to~~ conformity of such laws with 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. (viii) To the extent New York law is applicable, the Indenture constitutes the legal, valid and binding obligation of the Issuer under the law laws of the State of ~~New York~~Texas and (ii) rely as to matters of fact, ~~enforceable against~~ to the ~~Issuer in accordance with its terms~~extent deemed proper and as stated therein, on certificates of responsible officers of the Trust, the Seller and public officials. (ixc) ~~When~~ The Representative shall have received an opinion of Mayer, Brown, ▇▇▇▇ & Maw, special counsel to COAF and the ~~Notes have been duly executed~~ Seller, dated the Closing Date, in form and ~~delivered by~~ substance satisfactory to the ~~Issuer~~Representative and its counsel, ~~authenticated by~~ with respect to: certain corporate matters, perfection matters, matters related to the creation of a security interest, securities law matters, Investment Company Act matters, tax matters and enforceability matters (including with respect to the guaranty, dated the Closing Date (the "Guaranty") of Capital One Financial Corporation ("COFC"), in favor of 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 termsTrustee). (xd) In The Representative shall have received an opinion or opinions of Mayer, Brown, ▇▇▇▇ & Maw, special counsel for the Seller and COAF, dated the Closing Date, in form and substance satisfactory to the Representative and its counsel, substantially to the effect that: (i) the transfer of the Receivables by COAF to the Seller and by the Seller to the Trust would be characterized as a true sale or contribution thereof and (ii) in the event of an involuntary or voluntary bankruptcy case of COAF under the ~~Federal Deposit Insurance Corporation were~~ United States Bankruptcy Code, a bankruptcy court would not disregard the separate existence of COAF and the Seller so as to ~~be appointed~~ order the substantive consolidation of the assets and liabilities of the Seller with the bankruptcy estate of COAF. (e) The Representative shall have received from Dechert, a favorable opinion dated the Closing Date, with respect to such matters as ~~conservator or receiver~~ the Representative may reasonably require; and the Seller and COAF shall have furnished to such counsel such documents as they reasonably request for the ~~Bank pursuant~~ purpose of enabling them to ~~Section 11(c~~pass on all such matters. (f) The Representative shall have received an opinion from ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., General Counsel to COFC, COAF and the Seller, dated the Closing Date, in form and substance satisfactory to the Representative and its counsel, with respect to certain corporate matters relating to COFC, COAF and the Seller. (g) The Representative shall have received an opinion or opinions from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Seller, dated the Closing Date, in form and substance satisfactory to the Representative and its counsel, with respect to: (i) certain matters under Delaware law with respect to the Seller and the authority of the ~~Federal Deposit Insurance Act~~Seller to file a voluntary bankruptcy petition, ~~as amended~~(ii) certain corporate matters with respect to the Seller, (iii) certain matters with respect to the security interest of the Owner Trustee and the Indenture Trustee, respectively, in the Receivables. (h) At the Closing Date, Ernst & Young, LLP, shall have furnished to the Representative a ~~matter properly briefed and presented to a federal court with jurisdiction over such conservatorship~~ letter or ~~receivership~~letters, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize dated as ~~property~~ of the ~~Bank or the receivership the assets that have been transferred by the Bank~~ Closing Date, in form and substance satisfactory to the ~~Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state~~ Representative and its counsel, confirming that they are certified independent public accountants and stating in effect that they have ~~participated~~ 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 Trust, COAF and the Seller) set forth in ~~conferences~~ the Prospectus Supplement, agrees with ~~representatives~~ the accounting records of the Trust, COAF and the Seller, excluding any questions of legal interpretation. (i) The Representative shall have received evidence satisfactory to it that, on or before the Closing Date, UCC- 1 financing statements have been filed (or are being filed on the Closing Date) in the Secretary of State of Delaware and the Secretary of State of Texas, reflecting the transfer of the Receivables and related collateral from COAF to the Seller, the Seller to the Owner Trustee and the Owner Trustee to the Indenture Trustee. (j) The Representative shall have received evidence satisfactory to it that on or before the Closing Date, all applicable UCC termination statements or releases terminating liens on the Receivables of creditors of the Seller, the ~~Company and~~ Owner Trustee, COAF or any other person have been filed in the ~~Issuer and their accountants~~appropriate filing offices. (k) The Representative shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ~~and representatives of the Underwriters and their~~ counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the ~~foregoing~~Indenture Trustee, ~~nothing has come~~ dated the Closing Date, in form and substance satisfactory to ~~such~~ the Representative and its counsel~~’s attention to cause such~~ . (l) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to ~~believe that~~ the ~~Registration Statement~~Owner Trustee, ~~when taken together~~ dated the Closing Date, in form and substance satisfactory to the Representative and its counsel. (m) The Representative shall have received the opinion of counsel to the Note Insurer, dated the Closing Date, in form and substance satisfactory to the Representative and its counsel. (n) The Representative shall have received an opinion of Mayer, Brown, ▇▇▇▇ & Maw for COAF, special counsel to the Seller and COAF, dated the Closing Date, with respect to certificate of title matters in the ~~Ratings Issuer Free Writing Prospectus~~ state of Texas and in the state of California, in form and substance satisfactory to the Representative and its counsel. (~~excluding any exhibits filed therewith),~~ o) The Class A Notes shall be rated at the time ~~it became effective~~of issuance in the highest rating category by each of S&P, ~~contained~~ ▇▇▇▇▇'▇, and Fitch and shall not have been placed on any credit watch with a negative implication for downgrade. (p) At or before the closing of the Class A Notes, the Trust shall have issued $65,040,000 aggregate principal amount of the Class B Notes and shall have issued the Equity Certificate. (q) The Representative shall have received such information, certificates and documents as the Representative and its counsel may reasonably request. (r) On the Closing Date, the Representative shall have received a fully executed copy of each of the Transaction Documents. (s) On the Closing Date, the Representative shall have received evidence satisfactory to the Representative that the Note Insurer shall have issued the Note Guaranty Insurance Policy to the Indenture Trustee for the benefit of the Class A Noteholders, as defined in the Indenture, in form and substance satisfactory to the Representative. (t) The Representative shall have received a certificate of ▇▇▇▇▇ ▇▇▇▇ for the Note Insurer, to the effect that the section of the Offering Memorandum titled "The Note Guaranty Insurance Policy and the Note Insurer" does not contain 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (u) The Indemnification Agreement, ~~or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ dated as of the date ~~of such opinion~~hereof, ~~contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make~~ between 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Note Insurer and the ~~United States of America~~Representative shall have been executed and delivered by the parties thereto, 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 Seller and the ~~Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives~~ Representative shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a partycopy thereof. (v) To The Owner Trustee shall have delivered to DTC (or an approved custodian therefor) each of the ~~effect~~ global Class A Notes described in Section 3(b) above, duly executed by the Trust and authenticated by the Indenture Trustee. (w) The Indenture Trustee and the Owner Trustee shall have executed and delivered to DTC a standard "letter of representations" sufficient to cause DTC to qualify each Class of Class A Notes for inclusion in DTC's book-entry registration and transfer system. (x) The Collection Account, the Pre-Funding Account and the Reserve Fund shall have been established in accordance with the terms of the Indenture. (y) The Prospectus shall have been filed as required by Section 2(a) hereof, and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that ~~no consent~~purpose shall have been instituted or, ~~approval or authorization of~~to the knowledge of the Seller, ~~or filing with, any Virginia governmental agency or authority~~ COAF or any ~~Virginia court is~~ Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Prospectus or the Registration Statement or otherwise) shall have been complied with to the satisfaction of the Representative. (z) The Representative shall have received an executed copy of the Guaranty. (aa) All actions required on to be taken and all filings required to be made by the ~~part~~ Owner Trustee, the Seller and COAF under the Securities Act before the Closing Date for the issuance of the Class A Notes shall have been duly taken or made; and before the 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 Seller ~~under applicable Virginia~~ or COAF, threatened by the Commission. If any of the conditions specified in this Section 6 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 Representative. Notice of such cancellation shall be given to the Trust, the Seller and COAF in writing or by telephone or telecopy confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Capital One Auto Finance Trust 2002-A)

Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the Underwriters to purchase ~~and pay for~~ the ~~Notes will~~ Offered Certificates as provided in this Underwriting Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the~~ Contract Seller contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the~~ Contract Seller made in any officer's certificate pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company~~Contract Seller of its obligations hereunder, ~~the Issuer~~ and ~~the Seller in all material respects of their obligations hereunder and to~~ the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) The ~~Representatives~~ Registration Statement shall have ~~received~~become effective and no stop order suspending the effectiveness of the Registration Statement, ~~with respect~~ as amended from time to time, shall have been issued and not withdrawn; no proceedings for that purpose shall have been instituted or, to the ~~Company~~best knowledge of the Contract Seller, threatened; and the Prospectus Supplement shall have been filed or transmitted for filing with the Commission in accordance with Rule 424 under the Act. (b) The Contract Seller shall have delivered to you a certificate, dated the Closing Date, of ~~an authorized officer of the Company in which such officer~~any Vice President, Assistant Treasurer or any Assistant Secretary thereof to the ~~best~~ effect that the signer of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined this Underwriting Agreement, ~~shall state that~~ the Registration Statement and the Prospectus and that: (i) the representations and warranties ~~of the Company~~ made by it in this Underwriting Agreement are true and correct in all material respects on at and as of the Closing Date with the same effect as if made on the Closing Date, (ii) ~~the Company~~ it has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder~~ at or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~knowledge of such signer, threatened, and (iv) ~~since~~ nothing has come to such signer's attention that would lead such signer to believe that the ~~Time~~ Prospectus contains any untrue statement of ~~Sale~~a material fact or omits to state any material fact necessary in order to make the statements therein, ~~there has been no material adverse change~~ in the ~~condition (financial or otherwise)~~ light of the ~~Company’s business~~circumstances under which they were made, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto)not misleading. (c) The ~~Representatives~~ Underwriters shall have received ~~an opinion of the general counsel~~from [ ], ~~deputy general counsel, chief~~ counsel for ~~transactions~~the Contract Seller, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives)a favorable opinion, dated the Closing ~~Date,~~ Date and in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the ~~Company and the Seller~~Underwriters. In addition, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion [ ] shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with your representatives and with representatives of the ~~Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel~~ Contract Seller concerning the Registration ~~Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus~~ Statement and the Prospectus and have considered the matters required to be stated therein and the ~~matters stated~~ statements contained therein, although ~~they are~~ such counsel need not independently ~~verifying~~ verified the accuracy, completeness or fairness of such ~~statements (except as stated in paragraphs (vi) and (vii) above)~~statements. Based upon and subject to the foregoing, such counsel shall state that nothing has come to ~~such counsel’s~~ its attention to cause ~~such counsel~~ it to believe that the Registration ~~Statement, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement (excluding any exhibits filed therewith), at as of the ~~time it became effective~~Effective Date, contained ~~any~~ an untrue statement of a material fact or omitted to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing~~ Prospectus, as of the ~~Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light~~ date of the ~~circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ Prospectus Supplement and as of the ~~date of such opinion~~Closing Date, contained or contains ~~any~~ an untrue statement of a material fact or omitted or omits to state ~~any~~ a 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~~ have not been requested to and such counsel does not make any comment in this paragraph with respect to the financial statements, ~~supporting~~ schedules and other financial or and statistical information contained in the Registration ~~Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus~~ Statement or the ~~Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final~~ Prospectus)~~. In rendering such~~ . (d) The Underwriters shall have received from in-house counsel for the Contract Seller, a favorable opinion, dated the Closing Date and in form and substance satisfactory to counsel ~~may (x) as to matters involving~~ for 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto)Underwriters. (e) The ~~Representatives~~ Underwriters shall have received ~~an opinion or opinions of McGuireWoods LLP~~from [__________], ~~Virginia~~ counsel to for the ~~Seller and the Company~~Underwriters, a favorable opinion, dated the Closing ~~Date,~~ Date and in form and substance ~~reasonably~~ satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancementUnderwriters. (iif) ~~With respect to certain Virginia tax consequences relating~~ The Underwriters shall have received from [______] certified public accountants, a letter dated the Closing Date and satisfactory in form and substance to the ~~issuance of~~ Underwriters and counsel for the ~~Notes. (iii) To~~ Underwriters, to the effect that they have performed certain specified procedures, as a result of which they determined that the ~~Company is a limited liability company duly organized and~~ information of an accounting, financial or statistical nature set forth in ~~existence~~ the Base Prospectus under the ~~laws of Virginia~~ headings "The Seller" and ~~the Company has, in all material respects, the limited liability company power to own its assets~~ "Prepayment and ~~operate its business as described~~ Yield Considerations"and in the ~~Disclosure Materials,~~ Prospectus Supplement under the headings "The Seller" and ~~had at all relevant times,~~ "Prepayment and ~~now has,~~ Yield Considerations" agrees with the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part records of the Contract Seller ~~under applicable Virginia~~ or the Servicer, as the case may be.

Appears in 1 contract

Sources: Underwriting Agreement (Greenpoint Financial Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and ~~pay for~~ the ~~Notes will~~ Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the ~~date hereof and~~ Execution Time, the Closing ~~Date~~Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The ~~Representatives~~ Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ~~with respect to~~ P.C., counsel for the Company, ~~a certificate~~to have furnished to the Representatives their opinion, dated the Closing ~~Date, of an authorized officer of~~ Date and addressed to the ~~Company in which such officer~~Representatives, to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ effect that: (i) the ~~representations~~ Company has been duly incorporated and ~~warranties~~ is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification; (ii) all the issued and outstanding securities of the Company have been duly and validly authorized and issued and are fully paid and nonassessable; (iii) the Company’s authorized equity capitalization is as set forth in ~~this Agreement are true and correct~~ the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the Securities have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities are duly quoted, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the OTC Bulletin Board; the certificates for the Securities are in valid and as sufficient form; the holders of outstanding shares of capital stock of the ~~Closing Date~~Company are not entitled to preemptive or other rights to subscribe for the Securities; and, ~~(ii)~~ except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company ~~has complied in all material respects with all agreements and satisfied all conditions on~~ are outstanding; (iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its ~~part~~ property of a character required to be ~~performed~~ disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or ~~satisfied hereunder at~~ other document of a character required to be described in the Registration Statement or ~~before~~ Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the ~~Closing Date~~statements included in the Prospectus under the headings “Principal Stockholders,” “Certain Transactions,” “Description of Securities,” “Material U.S. Federal Income Tax Consequences to Non-U.S. Holders” and “Legal Matters” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings; (~~iii~~v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been ~~declared~~ made in the manner and ~~remains effective~~within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or ~~are~~ threatened by and the ~~Commission,~~ Registration Statement and ~~(iv) since~~ the ~~Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary~~ Prospectus (~~references~~ other than the financial statements and other financial and statistical information contained therein, as to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such ~~officer,~~ counsel need express no opinion) comply as to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied form in all material respects with ~~all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before~~ the ~~Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ applicable requirements of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, Act and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, except such as have been obtained or made rules thereunder; 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that counsel has no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to such counsel’s attention to cause such counsel reason to believe that on the Effective Date the Registration ~~Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective,~~ Statement 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,~~ misleading or that either (A) the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, Prospectus as of its date and on the Closing Date or ~~as of~~ (B) the ~~date of such opinion, contained~~ most recent Preliminary Prospectus included in the Registration Statement at the Execution Time included or ~~contains~~ includes any untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements ~~therein, in light of the circumstances under which they were made,~~ therein not misleading (~~it being understood that such counsel has not been requested to and does not make any comment~~ in ~~this paragraph with respect to~~ each case, other than the financial ~~statements, supporting schedules~~ statements and other financial or and statistical information contained therein, as to which such counsel need express no opinion); (vi) this Agreement has been duly authorized, executed and delivered by the Company; (vii) the Trust Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of general applicability; (viii) the Escrow Agreement has been duly authorized, executed and delivered by the Company and each of the Initial Stockholders or their attorney-in-fact, and is a valid and binding agreement of the Company and each of the Initial Stockholders, enforceable against the Company and each of the Initial Stockholders in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of general applicability; (ix) the Warrant Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of general applicability; (x) the Services Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of general applicability; (xi) the Warrant Purchase Agreement has been duly authorized, executed and delivered by the Company and each of the Founding Director Warrant Purchasers, and is a valid and binding agreement of the Company and each of the Founding Director Warrant Purchasers, enforceable against the Company and each of the Founding Director Warrant Purchasers in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of general applicability; (xii) each of the Non-Compete Agreements has been duly authorized, executed and delivered by the Company and each of the directors, officers and senior advisors party thereto, and is a valid and binding agreement of the Company and each of the directors, officers and senior advisors party thereto, enforceable against the Company and each of the directors, officers and senior advisors party thereto in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of general applicability; (xiii) each of the Insider Letters has been duly authorized, executed and delivered by each of the Initial Stockholders and is a valid and binding agreement of each of the Initial Stockholders, enforceable against each of the Initial Stockholders in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of general applicability; (xiv) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended; (xv) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters, as to which such counsel expresses no opinion; (xvi) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to, (i) the charter or by-laws of the Company, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties; and (xvii) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus). In rendering such opinion, such counsel may rely (xA) 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~~ State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, (yB) ~~rely~~ as to matters of fact, to the extent ~~deemed proper and as stated therein~~they deem proper, on certificates of responsible officers of the ~~Seller and the~~ Company and public ~~officials~~ officials, and (~~references~~ C) as to matters of capacity of the ~~Preliminary Prospectus~~ Initial Stockholders or the officers or directors of, or senior advisors to, the Company to enter into and perform the obligations imposed upon such persons, on the signatures of such persons on the documents described above, as applicable, without independent inquiry. References to the Prospectus in this ~~clause~~ paragraph (b) shall also include any ~~amendments~~ supplements thereto at the Closing Date. (c) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and EG&S, counsel for the Underwriters, such opinion or ~~supplements~~ opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus, any amendment or supplement thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). (e) The ~~Representatives~~ Company shall have ~~received an opinion or opinions of McGuireWoods LLP, Virginia counsel~~ requested and caused EKSH to have furnished to the ~~Seller~~ Representatives, at the Execution Time and at the ~~Company~~Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance ~~reasonably~~ satisfactory to the ~~Representatives~~ Representatives, confirming that they are registered independent accountants within the meaning of the Act and ~~their counsel~~the applicable rules and regulations adopted by the Commission thereunder and that they have not, during the periods covered by the financial statements included in the Registration Statement and Prospectus, provided to the Company any non-audit services, as such term is used in Section 10(A)(g) of the Exchange Act, and stating in effect that: (i) ~~With respect~~ in their opinion the financial statements included in the Registration Statement and the Prospectus comply as to form in all material respects with the ~~perfection~~ applicable accounting requirements of the ~~Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables~~ Act and the ~~Collateral Certificate~~ related rules and ~~certain other matters relating to any applicable credit enhancement.~~regulations adopted by the Commission; (ii) ~~With~~ on the basis of a limited review, which included a reading of the latest unaudited financial statements made available by the Company for the two-month period ended November 30, 2005, and as at November 30, 2005; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to ~~certain Virginia tax consequences relating to~~ the ~~issuance~~ comments set forth in such letter; a reading of the ~~Notes.~~minutes of the meetings of the stockholders, directors and various committees of the board of directors; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company as to transactions and events subsequent to November 30, 2005, nothing came to their attention which caused them to believe that: (~~iii~~1) To any unaudited financial statements included in the ~~effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia~~ Registration Statement and the ~~Company has,~~ Prospectus do not comply as to form in all material ~~respects,~~ respects with applicable accounting requirements of the ~~limited liability company power~~ Act and with the related rules and regulations adopted by the Commission with respect to ~~own its assets~~ registration statements on Form S-1; and ~~operate its business as described~~ said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included in the ~~Disclosure Materials,~~ Registration Statement and ~~had at all relevant times, and now has,~~ the ~~limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to be transferred~~ Prospectus; (2) with respect to the ~~Issuer as described~~ period subsequent to September 30, 2005, there were any changes, at a specified date not more than five days prior to the date of the letter, in the Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia long-term debt o

Appears in 1 contract

Sources: Underwriting Agreement (Boulder Specialty Brands, Inc.)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the Notes ~~will~~ hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Company, the Issuer and the Seller herein as of the date hereof and the Closing Date~~Company contained in this Agreement, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any applicable officers’ certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations ~~hereunder~~ under this Agreement and to the following additional conditions ~~precedent~~applicable to the Note Offering: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the related Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted, ~~with respect~~ or to the knowledge of the Company, threatened by the Commission. (b) The Company shall have furnished to the Representatives a ~~certificate~~certificate of the Company, signed by the President, any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of ~~an authorized officer of~~ such certificate has carefully examined the Transaction Documents to which the Company ~~in which such officer~~is a party, and that, to the best of ~~his or her~~ such person’s knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of the Company in this Agreement and the Transaction Documents to which the Company is a party are true and correct in all material ~~respects on~~ respects, and ~~as of the Closing Date, (ii)~~ the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an on the Closing Date a signed opinion of ~~the general counsel~~M▇▇▇▇ ▇▇▇▇▇ LLP, ~~deputy general counsel, chief~~ special New York counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the ~~Representatives), dated the Closing Date~~Company, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~Capital One Bank (USA), National Association~~ the Company is a ~~national banking association~~ limited liability company validly existing and in good standing under the laws of the ~~United States~~State of Delaware, and ~~the Bank has, in all material respects, the~~ has full power and authority to ~~own~~ enter into and perform its ~~assets and operate its business as described in the Disclosure Materials,~~ obligations under this Agreement and the ~~Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements~~ Transaction Documents to which it is a ~~party,~~ party and to consummate the transactions ~~set forth herein and therein.~~contemplated thereby; (~~iii~~ii) ~~Each~~ the execution, delivery and performance by the Company of this Agreement and the ~~Program Agreements~~ Transaction Documents to which the ~~Seller~~ Company is a party ~~has~~ have been duly authorized by all necessary action on the part of the ~~Seller~~ Company; (iii) each of the Transaction Documents to which the Company, the Bank or the Issuer (each, a “Specified Entity” and ~~has been duly executed~~ collectively, the “Specified Entities”) is a party constitutes a legal, valid and ~~delivered by~~ binding obligation of each such Specified Entity that is a party thereto, enforceable against each such Specified Entity in accordance with its terms; provided, that no such opinion need be expressed with respect to the ~~Seller.~~Trust Agreement; (iv) ~~Each~~ the execution and delivery by each Specified Entity of this Agreement and the Transaction Documents to which it is a party, and the consummation by each Specified Entity of the ~~Program Agreements~~ transactions contemplated thereby, will not violate any applicable statutory law or governmental rule or regulation; (v) the execution and delivery by each Specified Entity of this Agreement and the Transaction Documents to which ~~the Company~~ it is a party ~~has~~ do not, or did not, as applicable, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of the opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been ~~duly authorized~~ made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state; (vi) the execution and delivery by ~~all necessary~~ the Company of this Agreement and the Transaction Documents to which it is a party do not, or did not, as applicable, and the consummation by the Company of the transactions contemplated thereby to occur on the date of the opinion will not violate or contravene or constitute a default under any term or provision of the certificate of formation or the limited liability company ~~action on the part~~ agreement of the ~~Company~~ Company; (vii) each of the Notes is in due and ~~has been duly executed and delivered by the Company~~ proper form, and when ~~the Collateral Certificate has been~~ executed, authenticated and delivered as specified in the Indenture, and delivered against payment of the consideration specified herein, each of the Notes will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with ~~the terms of the Pooling and Servicing Agreement~~its terms, ~~the Collateral Certificate will be duly and validly issued and outstanding~~ and will be entitled to the benefits of the Pooling and Servicing Agreement. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws.; (viii) ~~Except~~ the Indenture has been duly qualified under the Trust Indenture Act of 1939, as ~~otherwise disclosed in~~ amended (the ~~Preliminary Prospectus or~~ “TIA”), and complies as to form with the TIA and the rules and regulations of the Commission thereunder; (ix) the Registration Statement, as of its Effective Date and the Prospectus, as of its date, complied as to form in all material respects with the ~~knowledge~~ requirements of the Act and the rules and regulations under the Act, except that (i) such ~~counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before~~ counsel need not express any ~~court, administrative agency or other tribunal~~ opinion as to (A) ~~asserting~~ the ~~invalidity of the Program Agreements~~financial and statistical data included therein or excluded therefrom, (B) ~~seeking to prevent~~ any other documents or information incorporated by reference in the ~~issuance of the Collateral Certificate~~ Registration Statement or the ~~Notes or the consummation of any of the transactions set forth by the Program Agreements~~Prospectus, ~~which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or~~ (C) ~~seeking adversely~~ any exhibits to ~~affect~~ the ~~United States federal income tax attributes~~ Registration Statement and (D) compliance by the Company and each issuing entity previously established, directly or indirectly, by the Company or any affiliate of the ~~Notes~~ Company with the registrant requirements set forth in General Instruction I.A.2 of Form SF-3 as ~~described~~ of any required date and (ii) except as and to the extent set forth in paragraphs (xi) and (xii) below, such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the ~~Preliminary~~ Registration Statement or the Prospectus; (x) the Registration Statement became effective under the Act not more than three (3) years prior to the Closing Date, and the Prospectus or has been filed with the Commission pursuant to Rule 424(b) thereunder in the manner and within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement and the Prospectus and no proceedings for that purpose have been instituted; (xi) the statements in the Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~The Trust— Perfection and Priority of Security Interests,” “—Conservatorship and Receivership of Synchrony Bank,” “Certain Considerations for ERISA and Other U.S. Employee Benefit Plans” and “~~Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇~~ Structural Summary—Certain Considerations for ERISA and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax ConsequencesOther U.S. Employee Benefit Plans,” ~~and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences),~~ to the extent they constitute matters of federal law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects.; (~~vii~~xii) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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,~~ Transaction Documents and the Notes ~~will constitute~~ conform in all material respects to the ~~legal, valid and binding obligations of~~ descriptions thereof contained in the Prospectus; and (xiii) the Issuer enforceable against the Issuer in accordance with their terms. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) ~~reclaim~~is not now, ~~recover or recharacterize as property~~ and immediately following the issuance of the ~~Bank or the receivership the assets that have been transferred by the Bank to the Company~~ Notes pursuant to the ~~Receivables Purchase Agreement~~ Indenture will not be, required to be registered as an “investment company” under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and as of the Closing Date, the Issuer satisfies the requirements to rely on the exemption from the definition of “investment company” provided by Rule 3a-7 of the Investment Company Act, although there may be additional exclusions or exemptions available to the Issuer and (B) ~~avoid~~ is not now, and immediately following the ~~Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives~~ issuance of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject Notes pursuant to the ~~foregoing~~Indenture will not be, nothing has come to such counsel’s attention to cause such counsel to believe that the Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, “covered fund” as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only defined in the final ~~Prospectus). In rendering such opinion~~regulations issued on December 10, ~~counsel may~~ 2013, implementing the “V▇▇▇▇▇▇ Rule” (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 Section 619 of the ~~Seller~~ D▇▇▇-F▇▇▇▇ ▇▇▇▇ Street Reform and ~~the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto~~Consumer Protection Act). (ed) The Representatives shall have received ~~an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated~~ on the Closing ~~Date~~Date a signed opinion of P▇▇▇ ▇▇▇▇▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the Representatives and ~~their counsel~~counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) ~~With respect to~~ the ~~perfection~~ Bank is duly organized and validly existing as a federal savings association in good standing under the laws of the ~~Company’s interest in the Receivables, the perfection~~ United States of ~~the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement.~~America; (ii) ~~With respect~~ the Bank is duly qualified to ~~certain Virginia tax consequences relating~~ do business and is in good standing as a foreign corporation in each jurisdiction where the conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the ~~issuance of~~ Servicing Agreement, the ~~Notes.~~Receivables Sale Agreement, the Administration Agreement, the Risk Retention Agreement, this Agreement and the Asset Representations Review Agreement; (iii) To the ~~effect that the Company is a limited liability company duly organized~~ Bank has all requisite banking power and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power authority to execute, deliver and perform its obligations under the Servicing Agreement, the Receivables Sale Agreement, the Asset Representations Review Agreement, the Risk Retention Agreement, the Administration Agreement and this Agreement and to consummate the transactions provided for therein; (iv) the execution, delivery and performance by the Bank of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite action on the part of the Bank; (v) each of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement has been duly executed and delivered by a duly authorized officer of the Bank; (vi) the execution, delivery and performance by the Bank of each of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement and the consummation of the transactions contemplated thereby do not and will not conflict with, result in a breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under: (a) the charter of the Bank, (b) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument or agreement to which the Bank is a party or by which the Bank is bound or (c) to such counsel’s knowledge, and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over the Bank; (vii) the execution, delivery and performance by the Bank of each ~~Program~~ of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement and the consummation of the transactions contemplated thereby do not and will not, to ~~which it is a party.~~the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement; (vviii) ~~To the effect that~~ no authorization, approval, consent, ~~approval~~ order, registration, qualification or ~~authorization of,~~ license of or filing with, any ~~Virginia~~ government, governmental ~~agency~~ instrumentality, agency, body or ~~authority~~ court, domestic or ~~any Virginia court~~ foreign, or third party is required for the performance by the Bank of all of its obligations under the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement, or the consummation by the Bank of the transactions contemplated by the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement and the Administration Agreement; and (ix) there is no action, suit or proceeding before or by any government, governmental instrumentality, agency, body or court, domestic or foreign, now pending or, to the best of such counsel’s knowledge, threatened, against or affecting the Bank (a) asserting the invalidity of the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement or the Administration Agreement or (b) that might materially and adversely affect the performance by the Bank of its obligations under, or the validity or enforceability of, the Servicing Agreement, the Receivables Sale Agreement, the Risk Retention Agreement, the Asset Representations Review Agreement, this Agreement or the Administration Agreement. (e) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel for the Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Trustee is validly existing as a national banking association under the federal laws of the United States of America and has the corporate power and authority to execute, deliver and perform its obligations under the Trust Agreement and to consummate the transactions contemplated thereby; (ii) the Trust Agreement has been duly authorized, executed and delivered by the Trustee; (iii) neither the execution, delivery and performance by the Trustee of the Trust Agreement, nor the consummation of any of the transactions by the Trustee 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 under the laws of the ~~Seller~~ State of Delaware or the federal laws of the United States of America governing the trust powers of the Trustee; and (iv) neither the execution, delivery and performance by the Trustee of the Trust Agreement, nor the consummation of any of the transactions by the Trustee contemplated thereby, is in violation of the articles of association or bylaws of the Trustee or of the laws of the State of Delaware or of the federal laws of the United States of America governing the trust powers of the Trustee. (f) The Representatives shall have received on the Closing Date a signed opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel for the Delaware Trustee, in form and substance reasonably satisfactory to the Representatives and counsel to the Representatives, dated the Closing Date and addressed to the Representatives, to the effect that: (i) the Delaware Trustee is validly existing as a national banking association under ~~applicable Virginia~~ the federal laws of the United States of America and has the corporate power and authority to execute, deliver and perform its obligations under the Trust Agreement and to consummate the transactions contemplated thereby; (ii) the Trust Agreement has been duly authorized, executed and delivered by the Delaware Trustee; (iii) neither the execution, delivery and performance by the Delaware Trustee of the Trust Agreement, nor the consummation of any of the transactions by the Delaware Trustee 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 under the laws of the State of Delaware or the federal laws of the United States of America governing the trust powers of the Delaware Trustee; and (iv) neither the execution, delivery and performance by the Delaware Trustee of the Trust Agreement, nor the consummation of any of the transactions by the Delaware Trustee contemplated thereby, is in violation of the articles of association or bylaws of the Delaware Trustee or of the laws of the State of Delaware or of the federal laws of th

Appears in 1 contract

Sources: Underwriting Agreement (Synchrony Card Issuance Trust)

Appears in 1 contract

Sources: Underwriting Agreement (Capital One Multi Asset Execution Trust)

Conditions to the Obligations of the Underwriters. The ~~obligations~~ obligation of each Underwriter hereunder to purchase its allocated share of the ~~Underwriters to purchase and pay for the Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date ~~hereof and~~ hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date, to as of the date the Prospectus Supplement or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates delivered pursuant to the provisions ~~thereof, to~~ hereof; (iii) the performance by the ~~Company, the Issuer~~ Company of its obligations hereunder; and ~~the Seller in all material respects of their obligations hereunder and to~~ (iv) the following additional ~~conditions precedent~~conditions: (a) The ~~Representatives~~ Registration Statement shall have ~~received~~become effective and no stop order suspending the effectiveness of the Registration Statement, ~~with respect~~ as amended from time to time, shall have been issued and not withdrawn and no proceedings for that purpose shall have been instituted or, to the Company's knowledge, threatened; and the Prospectus Supplement shall have been filed or transmitted for filing with the Commission in accordance with Rule 424 under the 1933 Act. (b) You shal▇ ▇▇▇▇ ▇eceived from Cadwalader, Wickersham & Taft LLP, counsel for ▇▇▇ ▇▇▇▇▇▇rit▇▇▇, a ~~certificate~~favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Company shall have delivered to you a certificate of the Company, signed by an authorized officer of the Company ~~in which such officer~~and dated the Closing Date, to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ effect that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on at and as of the Closing Date with the same effect as if made on the Closing Date, ; and (ii) the Company has ~~complied~~ in all material respects complied with all the agreements and satisfied all the conditions on its part that are required hereby to be performed or satisfied at or prior to the Closing Date; and Wachovia shall have delivered to you a certificate of Wachovia, signed by an authorized officer of Wachovia and dated the Closing Date, of the President, a Senior Vice President or a Vice President of Wachovia, to the effect that: (i) the representations and warranties of Wachovia in this Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on the Closing Date; and (ii) Wachovia has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or ~~before~~ prior to the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (bd) ~~The Representatives~~ You shall have ~~received~~received (i) with respect to Wachovia, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the ~~Seller~~Company a good standing certificate from the Secretary of State of the State of North Carolina, each dated not earlier than 30 days prior to the Closing Date. (i) You shall have received from the Secretary or an Assistant Secretary of the Company, in his individual capacity, a certificate, dated the Closing Date, of to the effect that: (x) each individual who, as an ~~authorized~~ officer or representative of the ~~Seller~~ Company, signed this Agreement, or any other document or certificate delivered on or before the Closing Date in ~~which~~ connection with the transactions contemplated herein, was at the respective times of such ~~officer~~signing and delivery, ~~to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations~~ and ~~warranties of the Seller in this Agreement are true and correct in all material respects on and~~ is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (iiy) no event (including, without limitation, any act or omission on the ~~Seller~~ part of the Company) has ~~complied~~ occurred since the date of the good standing certificate referred to in ~~all material respects with all agreements~~ paragraph 6(d) above which has affected the good standing of the Company under the laws of the State of North Carolina. Such certificate shall be accompanied by true and ~~satisfied all conditions~~ complete copies (certified as such by the Secretary or an Assistant Secretary of the Company) of the certificate of incorporation and by-laws of the Company, as in effect on ~~its part to be performed or satisfied hereunder at or before~~ the Closing Date, and ~~(iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ of the ~~Seller’s credit card business, except as set forth in or~~ resolutions of the Company and any required shareholder consent relating to the transactions contemplated in ~~the Preliminary Prospectus~~ this Agreement; and (~~references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c~~ii) ~~The Representatives~~ you shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the ~~general counsel~~Wachovia, ~~deputy general counsel~~in his individual capacity, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives)a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of Wachovia, signed this Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (y) no event (including, without limitation, any act or omission on the part of Wachovia) has occurred since the date of the certificate referred to in paragraph 6(d) above which has affected the existence of Wachovia under the laws of the United States of America. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of Wachovia) of the articles of association and by-laws of Wachovia, as in effect on the Closing Date, and of the resolutions of Wachovia and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from Cadwalader, Wickersham & Taft LLP, special coun▇▇▇ ▇▇▇ ▇▇e C▇▇▇▇ny, one or more favorable opinions, dated the Closing Date and satisfactory in form and substance ~~reasonably satisfactory~~ to you and counsel for the ~~Representatives and their counsel,~~ Underwriters substantially to the effect that: (i) ~~Capital One Bank (USA), National Association is a national banking association~~ The statements in the Prospectus under the ~~laws~~ headings "ERISA Considerations" and "Material Federal Income Tax Consequences", to the extent that they describe certain matters of ~~the United States~~federal law or legal conclusions with respect thereto, provide a fair and ~~the Bank has, in all material respects, the power to own its assets~~ accurate summary of such matters and ~~operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables.~~conclusions; (ii) ~~The Seller has~~ As described in the ~~power to execute~~ Prospectus Supplement and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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 assuming compliance with the ~~terms~~ provisions of the Pooling and Servicing Agreement, REMIC I, REMIC II and each ED Loan REMIC will qualify as a REMIC within the ~~Collateral Certificate will be duly~~ meaning of Sections 860A through 860G (the "REMIC Provisions") of the Code, and ~~validly issued and outstanding and will be entitled to~~ the ~~benefits~~ portion of the Trust Fund consisting of the Additional Interest (as such terms are defined in the Pooling and Servicing Agreement.) will be treated as a grantor trust for federal income tax purposes under subpart E, Part I of subchapter J of the Code; (viii) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the The Pooling and Servicing ~~Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court~~ Agreement is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 not required to ~~perfect~~ be qualified under the ~~security interest in~~ Trust Indenture Act of 1939, as amended, and the ~~Receivables pursuant to~~ Trust Fund created by the Pooling and Servicing Agreement or is not required to be registered under the ~~Collateral pursuant to the Indenture.~~Investment Company Act of 1940, as amended; (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (iiv) Each of Mortgage Loan Purchase Agreement and the Pooling and Servicing ~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase~~ Agreement constitutes the legal, valid and binding ~~obligation~~ agreement of the ~~Company and the Seller under the laws of the State of New York~~Company, enforceable against the Company ~~and the Seller~~ in accordance with its terms., subject to applicable bankruptcy, insolvency, fraudulent conveyance, liquidation, receivership, moratorium, reorganization and similar laws affecting creditors' rights generally, and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and except that: (a) provisions purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set-off, (b) provisions relating to submission to jurisdiction, venue or service of process, (c) interest on interest provisions or (d) severability clauses may be limited by applicable law or considerations of public policy; (iiv) The ~~sale~~ Registration Statement is effective under the 1933 Act and, to such counsel's knowledge, no stop order with respect thereto has been issued by the Commission; (vi) The Registration Statement, as of its effective date, and ~~delivery~~ the Prospectus, as of the ~~Notes~~ date thereof (in each case, with the exception of any information incorporated by reference therein and any numerical, financial, statistical and quantitative data included therein), appeared on their respective faces to be appropriately responsive in all material respects to the requirements of the 1933 Act and the rules and regulations thereunder applicable to such documents as of the relevant date; (vii) The statements contained in the ~~manner contemplated~~ Prospectus Supplement under the heading "Description of the Certificates", insofar as such statements purport to summarize material terms of the Certificates, are correct in all material respects; and (viii) The Certificates, when duly and validly executed, authenticated and delivered in accordance with the Pooling and Servicing Agreement and paid for in accordance with the Underwriting Agreement will be validly issued and outstanding and entitled to the benefits provided by the Pooling and Servicing Agreement. Such opinions may express their reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers and/or authorized representatives of, the parties to this Agreement and the Pooling and Servicing Agreement ~~do not require (A) the qualification of the Pooling~~ and ~~Servicing Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act~~on certificates furnished by public officials. Such opinion ~~shall specify one or more exclusions or exemptions from registration under~~ may assume the ~~1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which~~ due authorization, execution and delivery of the ~~Master Trust or~~ instruments and documents referred to therein by the ~~Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions~~ parties thereto. Such opinion may be ~~available). (iii) The Indenture has been~~ qualified ~~under~~ as an opinion only on 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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) To the extent New York law is applicable, the Indenture constitutes the legal, valid and binding obligation of the Issuer under the law laws of the State of New ~~York, enforceable against~~ York and the ~~Issuer in accordance with its terms. (ix) When~~ federal law of 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 United States. In a separate letter addressed only to the ~~benefits afforded by the Indenture~~Underwriters, Cadwalader, Wickersham & Taft LLP shall additio▇▇▇▇▇ ▇▇▇▇e t▇▇▇, based on conferences and the Notes will constitute the legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences telephone conversations with representatives of ~~the Seller~~LaSalle Bank, Wachovia, Citigroup Realty, ABN AMRO Bank, Eurohypo, the ~~Company and~~ Underwriters, the ~~Issuer~~ Company, the Trustee, the Paying Agent, the Master Servicer, the Special Servicer and their ~~accountants~~respective counsel, and ~~representatives~~ (with limited exception) without having reviewed any of the ~~Underwriters and their counsel concerning the Registration Statement~~mortgage notes, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 mortgages or ~~fairness of such statements (except as stated in paragraphs (vi) and (vii) above). Based upon and subject~~ other documents relating to the ~~foregoing~~Mortgage Loans or made any inquiry of any originator of any Mortgage Loan, nothing has come to such counsel’s 's attention ~~to cause such counsel~~ that would lead it to believe that (i) the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing~~ Prospectus (~~excluding~~ other than: any ~~exhibits filed therewith~~financial, numerical, statistical or quantitative information included therein), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as date of the ~~Time of Sale, contained any untrue statement of a material fact~~ Prospectus Supplement or ~~omitted to state a material fact necessary in order to make~~ at the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinionClosing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (~~it being understood that such counsel has not been requested to and does not make any comment in this paragraph~~ ii) the Registration Statement (other than with respect to any exhibits filed therewith or any information incorporated by reference), at its effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto)statements therein not misleading. (eg) ~~The Representatives~~ You shall have received ~~an opinion or opinions of McGuireWoods LLP~~from Timothy F. Danello, ~~Virginia~~ counsel to for the ~~Seller and the Company~~▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇via, a favorable opinion, dated the Closing ~~Date,~~ Date and satisfactory in form and substance ~~reasonably satisfactory~~ to you and counsel for the Underwriters, to the ~~Representatives and their counsel~~effect that: (i) ~~With respect to~~ The Company is a corporation in good standing under the ~~perfection~~ laws of the ~~Company’s interest in~~ State of North Carolina and has the ~~Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables~~ corporate power and ~~the Collateral Certificate~~ authority to enter into and ~~certain other matters relating to any applicable credit enhancement~~perform its obligations under this Agreement. (ii) ~~With respect to certain Virginia tax consequences relating~~ Neither the sale of the Underwritten Certificates, nor the consummation of any other of the transactions contemplated in or the fulfillment of the terms of this Agreement, will conflict with or result in a breach or violation of any term or provision of, or constitute a default (or an event which with the passing of time or notification, or both, would constitute a default) under, the articles of incorporation or by-laws of the Company, or, to the ~~issuance~~ knowledge of such counsel, any indenture or other agreement or instrument to which the ~~Notes~~Company is a party or by which it is bound, or, to the knowledge of such counsel, any order of any State of North Carolina or federal court, regulatory body, administrative agency or governmental body having jurisdiction over the Company. (iii) ~~To the effect that the Company~~ Wachovia is a ~~limited liability company duly organized and in existence~~ national banking association validly existing under the laws of ~~Virginia~~ the United States of America and has the ~~Company has, in all material respects, the limited liability company~~ corporate power and authority to ~~own~~ enter into and perform its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materialsobligations under this Agreement. (iv) To the ~~effect that~~ knowledge of such counsel, there are no actions, proceedings or investigations pending before or threatened by any court, administrative agency or other tribunal to which the Company ~~had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it~~ is a ~~party.~~party or of which any of its properties is the subject (a) which, if adversely determined, would have a material adverse effect on the business or financial condition of the Company, (b) asserting the invalidity of this Agreement or the Underwritten Certificates, (c) seeking to prevent the issuance of the Underwritten Certificates or the consummation by the Company of any of the transactions contemplated by this Agreement, as the case may be, or (d) which, if adversely determined, might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, this Agreement; (v) To This Agreement has been duly authorized, executed and delivered by each of the ~~effect that no~~ Company and Wachovia. Each of the Pooling and Servicing Agreement and each Mortgage Loan Purchase Agreement has been duly authorized, executed and delivered by the Company. (vi) No consent, ~~approval~~ approval, authorization or ~~authorization~~ order of any state or federal court or governmental agency or body is required for the consummation by Wachovia and the Company of the transactions contemplated by this Agreement except for those consents, approvals, authorizations or orders that previously have been obtained, as may be required under federal or state securities laws, and such real estate filings as may be required in connection with the transfer of the Mortgage Loans and the other matters contemplated under the Mortgage Loan Purchase Agreements. (vii) The fulfillment of the terms of this Agreement will not conflict with or result in a breach or violation of any term or provision of, or ~~filing with~~constitute a default (or an event which with the passing of time or notification, or both, would constitute a default) under, the articles of association or by-laws of Wachovia or, to such counsel's knowledge, any ~~Virginia governmental~~ indenture or other agreement or instrument to which Wachovia is a party or by which it is bound, or to such counsel's knowledge, any order of any federal court, regulatory body, administrative agency or ~~authority~~ governmental body having jurisdiction over Wachovia. (viii) To the knowledge of such counsel, there are no actions, proceedings or investigations pending before or threatened by any ~~Virginia court~~ court, administrative agency or other tribunal to which Wachovia is ~~required~~ a party or of which any of its properties is the subject (a) which, if adversely determined, would have a material adverse effect on the ~~part~~ business or financial condition of Wachovia, (b) asserting the invalidity of this Agreement, (c) seeking to prevent the consummation by Wachovia of any of the ~~Seller~~ transactions contemplated by this Agreement or (d) which, if adversely determined, might materially and adversely affect the performance by Wachovia of its obligations under, or the validity or enforceability of this Agreement. (h) You shall have received from KPMG LLP and Ernst & Young, certified public accountants, letters satisfactory in form and substance to you and counsel for the Underwriters, to the following effect: (i) they have performed certain specified procedures as a result of which they have determined that the information of an accounting, financial or statistical nature set forth in the Prospectus Supplement under ~~applicable Virginia~~ the captions "Summary of Prospectus Supplement," "Description of the Mortgage Pool" and "Yield and Maturity Considerations" and on Annex A agrees with the Master Tape prepared by or on behalf of the Mortgage Loan Sellers, unless non-material deviations are otherwise noted in such letter; and (ii) they have compared the data contained in the Master Tape referred to in the immediately preced

Appears in 1 contract

Sources: Underwriting Agreement (Wachovia Comm Mort Sec Inc Pass THR Certs Ser 2003-C9)

Conditions to the Obligations of the Underwriters. The respective obligations of the several Underwriters ~~to purchase and pay for the Notes will be~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on each of the Closing Dates, of the representations and warranties ~~on the part~~ of the Company, the ~~Issuer~~ Material Subsidiaries and the ~~Seller herein as of the date hereof and the Closing Date~~Selling Shareholders contained herein, to the accuracy of the statements of the Company, the ~~Issuer~~ Material Subsidiaries and the ~~Seller~~ Selling Shareholders made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the Company, the ~~Issuer~~ Material Subsidiaries and the ~~Seller in all material respects~~ Selling Shareholders of their obligations ~~hereunder~~ hereunder, and to each of the following additional ~~conditions precedent~~terms and conditions: (a) ~~The Representatives~~ No stop order suspending the effectiveness of either the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission, and any request for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with ~~respect~~ to the reasonable satisfaction of the Representatives. The Prospectus shall have been timely filed with the Commission in accordance with Section 4(I)(a). (b) None of the Underwriters shall have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Underwriters, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Custody Agreements, the Powers of Attorney, the Stock, the Registration Statement and the Prospectus and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Underwriters, the Company and the Selling Shareholders shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C. shall have furnished to the Representatives, such counsel’s written opinion, as counsel for the Company, ~~a certificate,~~ addressed to the Underwriters and dated the Closing ~~Date, of an authorized officer of~~ Date in form and substance reasonably satisfactory to the ~~Company in which such officer~~Representatives, to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ effect that: (i) the ~~representations~~ Company and ~~warranties~~ each of the ~~Company~~ Material Subsidiaries have been duly incorporated or organized and are validly existing as corporations (or other legal entities, as applicable) in ~~this Agreement~~ good standing (to the extent applicable) under the laws of their respective jurisdictions of incorporation or organization, and except as set forth on Schedule 2(d), are ~~true~~ duly qualified to do business and ~~correct~~ are in ~~all material respects~~ good standing as foreign corporations (or other legal entities, as applicable) in each jurisdiction listed on ~~and as of the Closing Date,~~ Schedule 6(d)(i); (ii) the Company has ~~complied~~ an authorized capitalization as set forth in the Prospectus, and all ~~material respects with all agreements~~ of the issued and ~~satisfied all conditions~~ outstanding shares of capital stock of the Company, including the Stock being delivered on ~~its part to be performed or satisfied hereunder at or before~~ the Closing Date, have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; (iii) all the outstanding shares of capital stock (or partnership or other organizational interests, as the case may be) of the Material Subsidiaries that are corporations have been duly authorized and validly issued, are fully paid and nonassessable and, except to the extent set forth in the Prospectus, are owned by the Company directly or indirectly through one or more wholly-owned subsidiaries, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party; (iv) there are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Stock pursuant to the Company’s charter or by-laws or any agreement or other instrument known to such counsel; (v) this Agreement has been duly authorized, executed and delivered by the Company and the Material Subsidiaries; (vi) to the best of such counsel’s knowledge, the execution, delivery and performance of this Agreement by the Company and the Material Subsidiaries and the consummation of the transactions contemplated hereby will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed as an exhibit to the Registration Statement nor will such actions result in any violation of the provisions of the charter or by-laws (or comparable governing documents) of the Company or any of its Material Subsidiaries nor will such actions result in any violation of the Delaware General Corporation Law, any Federal or Texas securities statute, law, rule or regulation, or any judgment, order or decree known to such counsel. (vii) the Registration Statement ~~has been~~ was declared effective under the Securities Act as of the date and ~~remains effective~~time specified in such opinion, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) of the Rules and Regulations specified in such opinion on the date specified therein and no stop order suspending the effectiveness of the Registration Statement has been issued ~~and~~ and, to the knowledge of such counsel, no ~~proceedings~~ proceeding for that purpose ~~have been instituted~~ is pending or ~~are~~ threatened by the Commission~~, and~~ ; (ivviii) ~~since~~ except for the ~~Time of Sale, there has been no material adverse change in the condition (financial or otherwise)~~ registration of the ~~Company’s business~~Stock under the Securities Act and such consents, ~~except~~ approvals, authorizations, registrations or qualifications as ~~set forth in or contemplated in~~ may be required under the ~~Preliminary Prospectus (references to~~ Exchange Act, the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer rules of the ~~Seller~~ Nasdaq National Market and by the Corporate Financing Department of NASD Regulation, Inc. and applicable state securities laws in ~~which such officer, to~~ connection with the ~~best of his or her knowledge after reasonable investigation, shall state that (i) the representations~~ purchase and ~~warranties~~ distribution of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered Stock by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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 AgreementUnderwriters, ~~the Collateral Certificate will be duly and validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement. (v) No~~ no consent, approval, authorization or order of, or filing or registration with, any ~~United States~~ Federal or Texas or governmental agency or ~~authority or any United States federal court~~ body is required on for the ~~part~~ execution, delivery and performance of this Agreement by the ~~Seller under United States federal law for~~ Company and the Material Subsidiaries and the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement.contemplated hereby; (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (iix) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result statements in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “~~Prospectus Summary – Federal Income Tax Consequences~~Description of Capital Stock,” “Shares Eligible for Future Sale” and “Federal ~~Income~~ Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory Considerations to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax ConsequencesNon-U.S. Holders,” ~~and “ Prospectus Summary – Federal Income Tax Consequences” (~~to the extent ~~relating to federal income tax consequences), to the extent~~ that they constitute summaries of matters of law or regulation or legal ~~conclusions with respect thereto~~conclusions, have been reviewed by such counsel and ~~are correct~~ fairly summarize the matters described therein in all material respects.; (~~vii~~x) ~~The statements~~ the description in the ~~Preliminary~~ Registration Statement and Prospectus ~~and the Prospectus under the headings “Certain Legal Aspects~~ of the ~~Receivables”~~ Delaware General Corporation Law are accurate and ~~“Benefit Plan Investors,” to~~ fairly summarize the ~~extent they constitute~~ matters ~~of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct~~ described therein in all material respects.; (~~viii~~xi) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, as of the ~~Preliminary~~ respective effective dates, and the Prospectus, as of its date, and any further amendments or supplements thereto, as of their respective dates, made by the ~~Ratings Issuer Free Writing Prospectus~~ Company prior to the Closing Date (other than the financial statements and other financial data or information contained therein, as to which such counsel need express no opinion) complied as to form in all material respects with the requirements of the Securities Act and the ~~Prospectus~~ Rules and ~~have considered the matters required to be stated therein~~ Regulations and the ~~matters stated~~ documents incorporated by reference in the Prospectus (other than the financial statements and related schedules therein, as to which such counsel need express no opinion, when they were filed with the Commission complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; and (xii) neither the Company nor the Material Subsidiaries is, or after giving effect to the offering and sale of the Stock and the application of the proceeds thereof as described in the Prospectus, will be, an “investment company” as defined in the Investment Company Act of 1940, as amended. In addition, such counsel shall make a statement in its opinion to the effect that (A) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, and (B) based on such counsel’s examination of the Registration Statement and such counsel’s investigations made in connection with the preparation of the Registration Statement and conferences with certain officers and employees of and with auditors for and counsel to the Company and although ~~they are~~ such counsel is not ~~independently verifying~~ passing upon and does not assume the responsibility for the accuracy, completeness or fairness of ~~such~~ the statements contained in the Registration Statement or Prospectus (except as and to the extent stated in ~~paragraphs~~ subparagraphs (viii) and (~~vii~~ix) above)~~. Based upon and subject to~~ , on the basis of the foregoing, ~~nothing has come to such counsel’s attention to cause~~ such counsel has no reason to believe that (I) the Registration Statement, ~~when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective~~as of its effective date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained~~ Prospectus contains any untrue statement of a material fact or ~~omitted~~ omits to state a 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,~~ misleading or ~~that~~ (II) any document incorporated by reference in the ~~Prospectus,~~ Prospectus when ~~taken together~~ they were filed with the ~~Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion,~~ Commission contained ~~or contains~~ any untrue statement of a material fact or omitted ~~or omits~~ to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (~~misleading; it being understood that such counsel ~~has not been requested to and does not make any comment in this paragraph with respect~~ need express no opinion as to the financial ~~statements, supporting schedules and~~ statements or other statistical or financial ~~or statistical information~~ data contained in the Registration ~~Statement~~Statement or the Prospectus. Moreover, in rendering such opinion, such counsel may state that they are relying upon the certificates of officers of the Company and the transfer agent for the common stock, as to the number of shares of common stock at any time or times outstanding. Such counsel may also rely upon the opinions of competent local or foreign counsel, satisfactory to counsel to the Underwriters as to local or foreign legal matters in jurisdictions other than those in which they are licensed to practice and, as to factual matters, on certificates of officers of the Company and of state officials, in which case their opinion is to state that they are so doing and copies of such opinions or certificates are to be attached to the opinion unless such opinions or certificates (or in the case of certificates, the ~~Preliminary Prospectus~~information therein) have been otherwise previously furnished to the Representatives and accurately identified in such opinion. (e) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P. or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ~~when taken together~~ General Counsel for the Company (or a combination of both) shall have furnished to the Representatives, such counsel’s written opinion, addressed to the Underwriters and dated the Closing Date in form and substance reasonably satisfactory to the Representatives, to the effect that: (i) to the best of such counsel’s knowledge, neither the Company nor any of the Material Subsidiaries is (i) in violation of its charter or by-laws (or equivalent governing instrument), (ii) in default, and no event has occurred, which, with notice or lapse of time or both, would constitute a default, in the ~~Ratings Issuer Free Writing Prospectus~~ due performance or observance of any term, covenant or condition contained in any agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (iii) in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ~~Prospectus or~~ownership of its property or to the conduct of its business except, in the case of clauses (ii) and (iii), for those defaults, violations or failures which, either individually or in the ~~Preliminary~~ aggregate, would not have a Material Adverse Effect (ii) the Company has obtained all Permits as defined herein required by the Federal Food, Drug, and Cosmetic Act and the regulations of the Food and Drug Administration promulgated thereunder in order to market the products identified on Schedule A attached thereto (the “Products”) for the indications for use specified in the respective clearances issued by the Food and Drug Administration with respect to such Products, as identified in Schedule A thereto (the “510(k) Clearances”); provided, however, that no opinion is expressed regarding the effect of any deviations or changes in any Product from the description of such Product set forth in the Company’s application for 510(k) Clearance; (iii) to such counsel’s knowledge no person or entity has the right to require registration of shares of Common Stock or other securities of the Company because of the filing or effectiveness of the Registration Statement or otherwise, except for persons and entities who have expressly waived such right or who have been given proper notice and have failed to exercise such right within the time or times required under the terms and conditions of such right; (iv) to such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the ~~omission~~ Company or any of ~~pricing and price-dependent information~~its subsidiaries is a party or of which any property or asset of the Company or any of its subsidiaries is the subject which, ~~which information shall of necessity appear only~~ singularly or in the ~~final Prospectus). In rendering such opinion~~aggregate, ~~counsel may (x) as~~ if determined adversely to ~~matters involving~~ the ~~application~~ Company or any of ~~laws other than~~ its subsidiaries, might have a Material Adverse Effect or would prevent or adversely affect the ~~laws~~ ability 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~~ Company to ~~matters of fact~~perform its obligations under this Agreement; and, to the ~~extent deemed proper and~~ best of such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; and (v) to such counsel’s knowledge, there are no statutes, legal or governmental proceedings, contracts or other documents of a character required to be described in the Registration Statement or Prospectus or to be filed as ~~stated therein, on certificates of responsible officers of the Seller and the Company and public officials (references~~ exhibits to the ~~Preliminary Prospectus~~ Registration Statement which are not described or ~~the Prospectus in this clause include any amendments or supplements thereto)~~filed as required. (ef) ~~The Representatives~~ Ropes & ▇▇▇▇ shall have ~~received an opinion or opinions of McGuireWoods LLP~~furnished to the Representatives such counsel’s written opinion, ~~Virginia~~ as counsel to the ~~Seller~~ Selling Shareholders, addressed to the Underwriters and ~~the Company,~~ dated the Closing Date, in form and substance reasonably satisfactory to the ~~Representatives and their counsel~~Representatives, to the effect that: (i) ~~With respect~~ each Selling Shareholder has full right, power and authority to enter into this Agreement, the ~~perfection~~ Power of Attorney, the Custody Agreement and the Lock-Up Agreement; the execution, delivery and performance of this Agreement, the Power of Attorney and the Custody Agreement by each Selling Shareholder and the consummation by each Selling Shareholder of the ~~Company~~transactions contemplated hereby and thereby will not to such counsel’s ~~interest~~ knowledge, conflict with or result in ~~the Receivables, the perfection~~ a breach or violation of any of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred terms or proposed to be transferred to the Issuer as described in the Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions ~~of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization~~ of, or ~~filing with~~constitute a default under, any ~~Virginia~~ New York or federal statute (except that such counsel is not required to express an opinion with respect to any state securities or blue sky laws), any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to such counsel to which any Selling Shareholder is a party or by which any Selling Shareholder is bound or to which any of the property or assets of any Selling Shareholder is subject, nor will such actions result in any violation of any provision of, in the case of a Selling Shareholder that is a corporation, the provisions of its charter or by-laws, in the case of a Selling Shareholder that is a partnership or limited liability company, the provisions of its articles of organization, partnership agreement, operating agreement or other similar agreement and, in the case of a Selling Shareholder that is a trust, the deed of trust, or any order, rule or regulation known to such counsel of any court or governmental agency or ~~authority or any Virginia court is required on the part~~ body of the ~~Seller under applicable Virginia~~ United States or the State of New York having j

Appears in 1 contract

Sources: Underwriting Agreement (Encore Medical Corp)

Conditions to the Obligations of the Underwriters. The ~~obligations of the Underwriters~~ Underwriters' obligation to purchase ~~and pay for~~ the ~~Notes will~~ Underwritten Certificates shall be subject to the ~~accuracy~~ following conditions: 6.1 No stop order suspending the effectiveness of the ~~representations~~ Registration Statement shall be in effect, and ~~warranties on~~ no proceedings for that purpose shall be pending or, to the ~~part~~ knowledge of the Company, threatened by the ~~Issuer~~ Commission; and the ~~Seller herein as~~ Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act. 6.2 Since January 1, 2002, there shall have been no material adverse change (not in the ordinary course of business) in the condition of the ~~date hereof and the Closing Date,~~ Company or GMACCM. 6.3 The Company shall have delivered to the accuracy of the statements of the Company, the Issuer and the Seller made pursuant to the provisions thereof, to the performance by the Company, the Issuer and the Seller in all material respects of their obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received, with respect to the Company, Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the President, a Senior Vice President or a Vice President of the Company to the effect that the signer of such certificate has examined this Agreement, the Prospectus, the Pooling and Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation: (a) the representations and warranties of the Company in ~~which~~ this Agreement and in the Pooling and Servicing Agreement are true and correct in all material respects; and (b) the Company has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. 2002-C2 Underwriting Agreement 11 (c) GMACCM shall have delivered to the Underwriters a certificate, dated the Closing Date, of the President, a Senior Vice President or a Vice President of GMACCM to the effect that the signer of such ~~officer~~certificate has examined the Pooling and Servicing Agreement and this Agreement and that, to the best of his or her knowledge after reasonable investigation, ~~shall state that (i)~~ the representations and warranties of GMACCM contained in the ~~Company~~ Pooling and Servicing Agreement and in this Agreement are true and correct in all material ~~respects on~~ respects. 6.4 The Underwriters shall have received the opinions of ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw, special counsel for the Company and GMACCM, dated the Closing Date as to such matters reasonably requested by the Underwriters, the opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇, Esq., associate counsel for the Company and GMACCM, dated the Closing Date as to such matters reasonably requested by the Underwriters. 6.5 The Underwriters shall have received from their counsel an opinion dated the Closing Date in form and substance reasonably satisfactory to the Underwriters. 6.6 The Underwriters shall have received from Deloitte & Touche, L.L.P., certified public accountants, (a) a letter dated the date hereof and reasonably satisfactory in form and substance to the Underwriters and their counsel, to the effect that they have performed certain specified procedures, all of which have been agreed to by you, as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Prospectus Supplement under the captions "Description of the ~~Closing Date,~~ Mortgage Pool," "Description of the Certificates" and "Yield and Maturity Considerations" agrees with the records of the Company and the Mortgage Loan Sellers excluding any questions of legal interpretation and (iib) the ~~Company has complied in all material respects with all agreements and satisfied all conditions on its part~~ letter prepared pursuant to ~~be performed or satisfied hereunder at or before the Closing Date, (iii) the Registration Statement has been declared and remains effective, no stop order suspending the effectiveness~~ Section 5.9 hereof. 6.7 The respective classes of ~~the Registration Statement has been issued and no proceedings for that purpose~~ Underwritten Certificates shall have been ~~instituted or are threatened by the Commission, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except~~ rated as set forth ~~in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto).~~on Schedule I. ~~(b)~~ 6.8 The ~~Representatives~~ Underwriters shall have received, with respect to the ~~Seller~~Trustee, a ~~certificate~~favorable opinion of counsel, dated the Closing Date, addressing the valid existence of ~~an authorized officer of the Seller in which~~ such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association party under the laws of the ~~United States, and the Bank has, in all material respects~~jurisdiction of its organization, the ~~power to own its assets~~ due authorization, execution and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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 delivery of the Pooling and Servicing ~~Agreement~~Agreement by such party and, subject to standard limitations regarding laws affecting creditors' rights and general principles of equity, the ~~Collateral Certificate will be duly and validly issued and outstanding and will be entitled to the benefits~~ enforceability of the Pooling and Servicing ~~Agreement. (v) No consent~~Agreement against such party. Such opinion may express its reliance as to factual matters on representations and warranties made by, ~~approval, authorization~~ and on certificates or ~~order~~ other documents furnished by officers and/or authorized representatives of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements parties to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act~~on certificates furnished by public officials. Such opinion ~~shall specify one or more exclusions or exemptions from registration under~~ may assume the ~~1940 Act (~~due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than ~~Section 3(c)(1) or 3(c)(7) thereof) upon~~ the party on behalf of which such opinion is being rendered. Such opinion may be qualified as an opinion only on the laws of each state in which the ~~Master Trust~~ writer of the opinion is admitted to practice law and the federal law of the United States. 6.9 The Underwriters shall have received from ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw, special counsel to the Company, and from ▇▇▇▇▇▇▇▇▇ ▇▇▇, associate counsel, to the Company, reliance 2002-C2 Underwriting Agreement 12 letters with respect to any opinions delivered to the rating agencies identified on Schedule I hereto. 6.10 The Underwriters shall have received from counsel to each Mortgage Loan Seller, the opinions substantially to the effect set forth in Section 8(e) of each Mortgage Loan Seller's respective Purchase Agreement (or Section 8(v) of each of the ~~Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available~~Purchase Agreements relating to the Warehouse Mortgage Loans). ~~(iii)~~ 6.11 The ~~Indenture has been qualified under~~ Company will furnish the ~~Trust Indenture Act. (iv) The Collateral Certificate, when executed and authenticated in accordance~~ Underwriters with ~~the terms~~ conformed copies of the ~~Pooling~~ above opinions, certificates, letters and ~~Servicing Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement~~documents as they reasonably request. (v) Each of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) 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, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of the Time of Sale, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that the Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact 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 this paragraph with respect to the financial statements, supporting schedules and other financial or statistical information contained in the Registration Statement, the Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case of the Preliminary Prospectus, the omission of pricing and price-dependent information, which information shall of necessity appear only in the final 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 Seller and the Company and public officials (references to the Preliminary Prospectus or the Prospectus in this clause include any amendments or supplements thereto). (e) The Representatives shall have received an opinion or opinions of McGuireWoods LLP, Virginia counsel to the Seller and the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel: (i) With respect to the perfection of the Company’s interest in the Receivables, the perfection of the Master Trust Trustee’s interest in the Receivables and the Collateral Certificate and certain other matters relating to any applicable credit enhancement. (ii) With respect to certain Virginia tax consequences relating to the issuance of the Notes. (iii) To the effect that the Company is a limited liability company duly organized and in existence under the laws of Virginia and the Company has, in all material respects, the limited liability company power to own its assets and operate its business as described in the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power 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 Disclosure Materials. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (Gmac Commercial Mortgage Securities Inc)

Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters ~~to purchase and pay for the Notes will~~ as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the ~~Company, the Issuer and the Seller~~ Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the ~~Company, the Issuer and the Seller~~ Company made in any certificates pursuant to the provisions ~~thereof~~hereof, to the performance by the ~~Company, the Issuer and the Seller in all material respects~~ Company of ~~their~~ its obligations hereunder and to the following additional conditions ~~precedent~~with respect to the Offered Certificates: (a) ~~The Representatives~~ No stop order suspending the effectiveness of the Registration Statement shall have ~~received~~been issued and no proceedings for that purpose shall have been instituted or threatened; and the Preliminary Prospectus, the Prospectus and all other Time of Sale Information shall have been filed with ~~respect~~ the Commission within the time period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the ~~Company,~~ extent required to be filed thereunder. (b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, of ~~an authorized officer~~ the president or a vice president of the Company ~~in which such officer,~~ to the ~~best~~ effect that the signatory of ~~his or her knowledge after reasonable investigation~~such certificate has carefully examined the Registration Statement, ~~shall state that~~ the Time of Sale Information, this Agreement and the Prospectus and 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 with the same effect as if made on the Closing Date, (ii) the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~hereunder at~~ on or ~~before~~ prior to the Closing Date, (iii) ~~the Registration Statement has been declared and remains 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~~ or, to the ~~Commission~~Company’s knowledge, threatened, and (iv) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Company’s business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any supplements thereto). (b) The Representatives shall have received, with respect to the Seller, a certificate, dated the Closing Date, of an authorized officer of the Seller in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Seller in this Agreement are true and correct in all material respects on and as of the Closing Date, (ii) the Seller has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or before the Closing Date, and (iii) since the Time of Sale, there has been no material adverse change in the condition (financial or otherwise) of the Seller’s credit card business, except as set forth in or contemplated in the Preliminary Prospectus (references to the Preliminary Prospectus in this clause include any amendments and supplements thereto). (c) The Representatives shall have received an opinion of the general counsel, deputy general counsel, chief counsel for transactions, or senior associate general counsel of Capital One Bank (USA), National Association, or such other legal counsel that Capital One Bank (USA), National Association may choose (provided that such legal counsel is acceptable to the Representatives), dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Capital One Bank (USA), National Association is a national banking association under the laws of the United States, and the Bank has, in all material respects, the power to own its assets and operate its business as described in the Disclosure Materials, and the Bank had at all relevant times and now has, the power to acquire, own and service the Receivables. (ii) The Seller has the power to execute and deliver each of the Program Agreements to which it is a party, and to consummate the transactions set forth herein and therein. (iii) Each of the Program Agreements to which the Seller is a party has been duly authorized by all necessary action on the part of the Seller and has been duly executed and delivered by the Seller. (iv) Each of the Program Agreements to which the Company is a party 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. (v) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Seller under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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 Agreement or the Pooling and Servicing Agreement. (vi) No consent, approval, authorization or order of, or filing with, any United States governmental agency or authority or any United States federal court is required on the part of the Company under United States federal law for the consummation of the transactions set forth in the Program Agreements to which it is a party, 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. (vii) Neither the execution and delivery by each of the Seller and the Company, as applicable, of the Program Agreements to which it is a party, or the performance by each of the Seller and the Company of its obligations thereunder, nor the transfer by the Seller of the Receivables and its interest in any related Funds Collateral to the Company or the transfer by the Company of the Receivables and its interest in any related Funds Collateral to the Issuer, result in a material violation of any of the terms of (i) the applicable organizational documents of the Bank or the Company, each as amended, or (ii) any rule, order (known to us), statute or regulation, to the extent the foregoing relate to United States federal law, of any United States court, regulatory body, or administrative or governmental agency having jurisdiction over the Seller or the Company, as applicable, or result in a material breach of any of the terms of or constitute a default under the terms of any material indenture or other material agreement or instrument known to us to which the Seller or the Company is a party; provided, however, that no opinion is expressed with respect to any state securities or Blue Sky laws. (viii) Except as otherwise disclosed in the Preliminary Prospectus or the Registration Statement, to the knowledge of such counsel, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of the Program Agreements, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth by the Program Agreements, which if adversely determined would materially and adversely affect the Collateral Certificate or the holders of the Notes, or the validity or enforceability of, the Program Agreements, or (C) seeking adversely to affect the United States federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (d) The Representatives shall have received an opinion or opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel for the Company and the Seller, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives and their counsel, to the effect that: (i) Each of the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement and the Receivables Purchase Agreement constitutes the legal, valid and binding obligation of the Company and the Seller under the laws of the State of New York, enforceable against the Company and the Seller 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 Agreement under the Trust Indenture Act, or (B) the registration of the Master Trust or the Issuer under the 1940 Act. Such opinion shall specify one or more exclusions or exemptions from registration under the 1940 Act (other than Section 3(c)(1) or 3(c)(7) thereof) upon which the Master Trust or the Issuer, as applicable, is relying (although other statutory or regulatory exclusions or exemptions may be available). (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 Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Indenture, the Asset Representations Review Agreement, the Collateral Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and the Prospectus. (vi) The statements in the Preliminary Prospectus and the Prospectus under the headings “Federal Income Tax Consequences” and “ Prospectus Summary – Federal Income Tax Consequences” (to the extent relating to federal income tax consequences), 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) The statements in the Preliminary Prospectus and the Prospectus 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. (viii) 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. (ix) 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. (x) In the event the Federal Deposit Insurance Corporation were to be appointed as conservator or receiver for the Bank pursuant to Section 11(c) of the Federal Deposit Insurance Act, as amended, in a matter properly briefed and presented to a federal court with jurisdiction over such conservatorship or receivership, the court, exercising reasonable judgment after full consideration of all relevant factors in a properly presented and argued case, would hold that the Federal Deposit Insurance Corporation could not (A) reclaim, recover or recharacterize as property of the Bank or the receivership the assets that have been transferred by the Bank to the Company pursuant to the Receivables Purchase Agreement or (B) avoid the Receivables Purchase Agreement. Such counsel shall also state that they have participated in conferences with representatives of the Seller, the Company and the Issuer and their accountants, and representatives of the Underwriters and their counsel concerning the Registration Statement, the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus 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 paragraphs (vi) and (vii) above). Based upon and subject to the foregoing, nothing has come to ~~such counsel’s~~ his/her attention ~~to cause such counsel~~ that would lead him/her to believe that the ~~Registration Statement, when taken together with the Ratings Issuer Free Writing Prospectus (excluding any exhibits filed therewith), at the time it became effective, contained any untrue statement~~ Time 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 Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing ProspectusSale Information, as of the Time of Sale, ~~contained any untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or that~~ the Prospectus, ~~when taken together with the Ratings Issuer Free Writing Prospectus, as of its date or~~ as of the date of ~~such opinion~~the Prospectus and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements ~~therein~~therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not ~~misleading~~ misleading. (~~it being understood that such counsel has not been requested~~ c) The Company shall have furnished or caused to ~~and does not make any comment in this paragraph with respect~~ be furnished to the ~~financial statements, supporting schedules and other financial or statistical information contained in~~ Underwriters a good standing certificate regarding the ~~Registration Statement,~~ Company from the ~~Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus or the Prospectus or, in the case~~ Secretary of State of the ~~Preliminary Prospectus~~State of Delaware, dated not earlier than 30 days prior to the ~~omission~~ Closing Date. (d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the secretary or an assistant secretary of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final 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 factCompany, to the ~~extent deemed proper and~~ effect that each individual who, as ~~stated therein, on certificates of responsible officers~~ an officer or representative of the ~~Seller~~ Company, signed this Agreement, the Mortgage Loan Purchase Agreements, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Mortgage Loan Purchase Agreements or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative. Such officer’s certificate shall be accompanied by true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and of the resolutions of the Company and ~~public officials (references~~ any required shareholder consent relating to the ~~Preliminary Prospectus or the Prospectus~~ transactions contemplated in this ~~clause include any amendments or supplements thereto)~~Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement. (e) The ~~Representatives~~ Company shall have timely complied with all requirements of Rules 15Ga-2 and 17g-5 under the Exchange Act to the satisfaction of the Underwriters. (f) The Underwriters shall have received ~~an opinion or opinions of McGuireWoods~~ from Sidley Austin LLP, ~~Virginia~~ special counsel to the ~~Seller and the~~ Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance ~~reasonably satisfactory~~ to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (g) The Underwriters shall have received from Sidley Austin LLP, special counsel to the ~~Representatives~~ Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus as of the Time of Sale, and ~~their~~ to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (h) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel:’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America. (i) ~~With respect to the perfection of the Company’s interest in the Receivables, the perfection~~ The Underwriters shall have received from counsel for each of the Master ~~Trust Trustee’s interest~~ Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the ~~Receivables~~ Preliminary Prospectus and the ~~Collateral Certificate~~ Prospectus with respect to each such party with the requirements of Regulation AB and ~~certain other matters relating~~ that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to ~~any applicable credit enhancement~~state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them. (iij) ~~With~~ The Underwriters shall have received from counsel for the Third-Party Purchaser a favorable opinion, dated the Closing Date, with respect to ~~certain Virginia tax consequences relating~~ such matters as the Underwriters shall have reasonably requested, which will include an opinion that the Preliminary Prospectus as of the Time of Sale and the Prospectus as of the date of the Prospectus and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be dated the Closing Date and addressed to the ~~issuance of~~ Underwriters or accompanied by reliance letters to the ~~Notes~~Underwriters or shall state that the Underwriters may rely upon them. (~~iii~~k) To The Underwriters shall have received from Cadwalader, Wickersham & Taft LLP, special counsel for the ~~effect~~ Underwriters, a written opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters. (l) The Underwriters shall have received from the Accountants, certified public accountants, (i) a copy of the Accountant’s Due Diligence Report and (ii) letters dated on or prior to the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (m) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Term Sheet (or such other FWP) by the rating agency or agencies indicated therein. (n) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. (o) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the ~~Company is a limited liability company duly organized~~ Underwriters may rely upon them. (p) The Underwriters shall have received from each Mortgage Loan Seller an Officer’s Certificate as set forth in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters. (q) All proceedings in ~~existence under~~ connection with the ~~laws of Virginia~~ transactions contemplated by this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request. (r) Subsequent to the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the business or properties of the Company ~~has~~or a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, in the reasonable judgment of such Underwriter, materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the offering or the delivery of the Offered Certificates as contemplated by the Preliminary Prospectus and the Prospectus. (s) If any of the conditions specified in this Section 6 shall not have been fulfilled in all material ~~respects~~respects when and as provided by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the ~~limited liability company power to own its assets and operate its business as described in~~ Closing Date by the Disclosure Materials, and had at all relevant times, and now has, the limited liability company power to acquire and own the Receivables and its interest in any Collateral Certificate transferred or proposed to Underwriters. Notice of such cancellation shall be ~~transferred~~ given to the ~~Issuer as described~~ Company in ~~the Disclosure Materials~~writing, by telephone or by either telegraph or telecopier confirmed in writing. (iv) To the effect that the Company had at all relevant time, and now has, the limited liability company power to execute, deliver and perform the terms and provisions of each Program Agreement to which it is a party. (v) To the effect that no consent, approval or authorization of, or filing with, any Virginia governmental agency or authority or any Virginia court is required on the part of the Seller under applicable Virginia

Appears in 1 contract

Sources: Underwriting Agreement (Benchmark 2024-V11 Mortgage Trust)

Appears in 1 contract

Sources: Underwriting Agreement (Capital One Funding, LLC)

Common use of Conditions to the Obligations of the Underwriters Clause in Contracts