Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties on the part of the Depositor herein, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions precedent: (a) The Prospectus and any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to 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 Depositor or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law. (b) On or prior to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 2 contracts

Sources: Underwriting Agreement (DaimlerChrysler Auto Trust 2006-C), Underwriting Agreement (DaimlerChrysler Auto Trust 2006-A)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to ~~purchase and pay for~~ such Designated Securities shall be subject, in the ~~Offered Notes will be subject~~ discretion of the Representatives, to the ~~accuracy of the~~ condition that all representations and warranties ~~on the part~~ and other statements of the ~~Depositor herein~~Company in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, ~~to the accuracy~~ at and as of the ~~statements~~ Time of ~~officers of~~ Delivery for such Designated Securities, true and correct in all material respects, the ~~Depositor made pursuant to~~ condition that the ~~provisions hereof, to the performance by the Depositor~~ Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and to the following additional ~~conditions precedent~~conditions: (a) The Prospectus ~~and any supplements thereto~~ in relation to the applicable Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been filed with the Commission pursuant to Rule 433 within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction. (b) Counsel for the Underwriters shall have furnished to the Representatives such opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the incorporation of the Company, the validity of the Indenture, the Designated Securities, the Registration Statement, the Prospectus as amended or supplemented, the Time of Sale Information and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. (c) The General Counsel of the Company, or other counsel for the Company satisfactory to the Representatives, shall have furnished to the Representatives such counsel’s written opinion, dated the Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, substantially to the effect that: (i) The Company and each Principal Subsidiary have been duly incorporated and each is validly existing as a corporation or other entity under the laws of its jurisdiction of incorporation, has all requisite corporate (or entity) power and authority to own, lease and operate its properties and to conduct its business in all material respects as it is currently being conducted and as described in the Prospectus and the Time of Sale Information; the Company is in good standing under the laws of its jurisdiction of incorporation and is duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction where the ownership and leasing of its properties or the conduct of its business requires such qualification, except where the failure to so qualify would not reasonably be expected to have a Material Adverse Effect; (ii) Each of this Agreement and the Pricing Agreement with respect to the Designated Securities has been duly authorized, executed and delivered by the Company; (iii) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject and, to the best of such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities, other than as set forth or incorporated by reference in the Prospectus and the Time of Sale Information and other than those which individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect; (iv) The Designated Securities have been duly authorized by the Company; assuming (a) that they have been duly signed by the manual or facsimile signatures of officers (specified in such opinion) of the Company (provided that counsel shall not make the assumption in this clause (a) with respect to Designated Securities that are global securities), and (b) that the Designated Securities have been duly authenticated by the Trustee under the Indenture, when issued and delivered to the Underwriters in exchange for payment therefor in accordance with the ~~Rules~~ terms of this Agreement, the Designated Securities shall constitute valid and ~~Regulations~~ binding obligations of the Company, entitled to the benefits provided by the Indenture and ~~Section 7(a~~enforceable in accordance with their terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability; and the Designated Securities and the Indenture conform in all material respects to the descriptions thereof in the Prospectus and the Time of Sale Information; (v) ~~hereof~~The Indenture has been duly authorized, executed and delivered by the Company and constitutes the valid and binding obligation of the Company enforceable against the Company in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability; the Indenture has been duly qualified under the Trust Indenture Act; (vi) The statements set forth in the Prospectus and the Time of Sale Information under the captions “Description of Notes” and “Description of Debt Securities” (or similar headings referring to the Designated Securities), insofar as they purport to constitute a summary of the terms of the Securities and the provisions of the documents referred to therein, are accurate summaries of the material terms thereof; (vii) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, this Agreement and the Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute or result in a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other similar agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, other than such as would not reasonably be expected to have a Material Adverse Effect or affect the validity of the Designated Securities or the legal authority of the Company to comply with the Designated Securities, the Indenture, this Agreement or the Pricing Agreement; nor will such actions result in a violation of the provisions of the Restated Certificate of Incorporation of the Company or the Bylaws of the Company, as amended and restated; nor will any such action result in a violation of any statute or any order, rule or regulation of any court or governmental agency or body in the United States having jurisdiction over the Company or any of its subsidiaries or any of their properties other than such as would not reasonably be expected to have a Material Adverse Effect or affect the validity of the Designated Securities or the legal authority of the Company to comply with the Designated Securities, the Indenture, this Agreement or the Pricing Agreement (except to the extent that the issue and sale of the Designated Securities as contemplated by this Agreement and the Pricing Agreement and the distribution of the Designated Securities by the Underwriters may result in violations of state securities or Blue Sky laws); and except as set forth in the Registration Statement or the Prospectus, no consent, approval, authorization, order, registration or qualification of or with any New York State or Federal court or any such New York State or Federal regulatory authority or other governmental body having jurisdiction over the Company is required for the issue and sale of the Designated Securities by the Company or the consummation by the Company of the other transactions contemplated by this Agreement or the Pricing Agreement or the Indenture, except such as have been obtained under the Securities Act and the Trust Indenture Act, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters, as to which such counsel need express no opinion; (viii) The 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 became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; (ix) The Registration Statement and the Prospectus as amended or supplemented and any further amendments and supplements thereto made by the Company prior to the ~~Closing Date~~Time of Delivery for the Designated Securities (other than the financial statements and related notes and schedules and other financial, statistical and accounting data contained or incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion) appear on their face to be appropriately responsive in all material respects with the requirements of the Securities Act and the Trust Indenture Act (other than the Trustee’s Statement of Eligibility on Form T-1, as to which such counsel need express no opinion) and the rules and regulations thereunder; and the information included in the Registration Statement in response to Item 10 (insofar as it relates to such counsel) of Form S-3 is to the best of such counsel’s knowledge an accurate statement of the matter therein set forth and fairly presents the information called for with respect to that matter by the Securities Act and the rules and regulations thereunder; (x) The Registration Statement has become effective under the Securities Act; any required filing of the Prospectus pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by Rule 424(b) under the Securities Act, any required filing of any Issuer Free Writing Prospectus pursuant to Rule 433 under the Securities Act has been made in the manner and within the time period required by Rule 433 and, based solely upon such counsel’s review of the list of stop orders issued by the Commission and published on the Commission’s website as of the date of the issuance of the Designated Securities, no stop order suspending the effectiveness of the Registration Statement ~~shall have~~ has been issued ~~and~~ under the Securities Act and, to the best of such counsel’s knowledge, no proceedings for that purpose ~~shall~~ or pursuant to Section 8A of the Securities Act have been ~~instituted or~~initiated or are pending or threatened by the Commission; and (xi) The Company is not and, after giving effect to the ~~knowledge~~ offering and sale of the ~~Depositor~~ Securities and the application of the proceeds thereof as described in the Registration Statement, the Prospectus and the Time of Sale Information, will not be an “investment company” or ~~you~~an entity “controlled” by an “investment company” within the meaning of the Investment Company Act. Such counsel may also state that during the preparation of the Registration Statement, the Prospectus and the Time of Sale Information, such counsel has participated in conferences with other officers and representatives of the Company, representatives of Deloitte & Touche LLP, the Underwriters and their counsel, at which conferences the contents of the Registration Statement, the Prospectus and the Time of Sale Information and related matters were discussed, reviewed and revised. Although such counsel is not passing upon, and does not assume responsibility for, the accuracy, completeness or fairness of such contents (except as expressly indicated in subparagraph (vi) above) and has not made any independent investigation or verification thereof, on the basis of the information which was developed in the course thereof, considered in light of such counsel’s understanding of applicable law and the experience such counsel has gained through its practice thereunder, nothing has come to such counsel’s attention which causes it to believe that: (A) that the Registration Statement or any post-effective amendment thereto, at the time the Registration Statement or any post-effective amendment thereto (including the filing of the Company’s Annual Report on Form 10-K with the Commission) became effective and as of the date hereof, contained any 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, (B) that the Prospectus as of its date and the Time of Delivery included or includes 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 (C) that the Time of Sale Information, at the Time of Sale (which the Representatives have informed such counsel was the time prior to the first use of the Free Writing Prospectus) and, as amended or supplemented, if applicable, as of the Time of Delivery, included or includes 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; provided that such counsel need not express any belief as to the financial statements, related notes and supporting schedules and other financial, statistical and accounting data included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information or omitted therefrom or as to the Trustee’s Statement of Eligibility on Form T-1. Such counsel shall also state that such counsel does not know of any contracts or other documents of a character required to be ~~contemplated~~ filed as an exhibit to the Registration Statement or required to be incorporated by reference in the ~~Commission~~ Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by ~~any authority administering any state securities~~ reference or ~~blue sky law~~described as required. In rendering the foregoing opinion, such counsel may rely upon opinions of local counsel (which may include counsel for the Representatives) satisfactory in form and scope to counsel for the Representatives. (bd) ~~On or prior to~~ At the ~~Closing Date~~date hereof and at the Time of Delivery, ~~you~~ the Representatives shall have received from Deloitte & Touche LLP a ~~letter~~letter dated such date, ~~dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise~~ in form and substance reasonably satisfactory to ~~you~~ the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and ~~your counsel~~information of the type referred to in AICPA Statement on Auditing Standards No. 72 (or any successor standard thereto). (ce) ~~Subsequent to~~ Since the ~~execution and delivery of this Agreement or, if earlier, the~~ respective dates as of which information is given in the ~~Registration Statement~~ Prospectus (~~exclusive~~ including any amendments or supplements prior to the execution of ~~any amendment thereto~~the Pricing Agreement relating to the Designated Securities) and the ~~Prospectus (exclusive~~ Time of ~~any supplement thereto)~~Sale Information, there shall not have ~~occurred (i)~~ been any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, material decrease in the ~~judgment~~ outstanding capital stock (other than repurchases of ~~the Underwriters~~common stock pursuant to previously disclosed programs or employee plans, ~~materially impairs the investment quality of the Offered Notes~~ disclosed or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or incorporated by reference in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.Prosp

Appears in 2 contracts

Sources: Underwriting Agreement (Monsanto Co /New/), Underwriting Agreement (Monsanto Co /New/)

Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the Underwriters ~~to purchase and pay for the Offered Notes will be~~ hereunder are subject ~~to the accuracy of the representations and warranties on the part of the Depositor herein, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof,~~ to the performance by ~~the Depositor~~ each of BCRC and BCI of its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) ~~The~~ the Registration Statement shall have become effective, or if a post-effective amendment is required to be filed under the Securities Act, such post-effective amendment shall have become effective, not later than 5:00 P.M., New York City time, on the date hereof; and on or prior to the Closing Date no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment shall be in effect, and no proceedings for such purpose shall be pending before or to BCRC's or BCI's knowledge threatened by the Commission; the Prospectus ~~and any supplements thereto~~ shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with ~~the Rules and Regulations and~~ Section ~~7(a~~5(a) hereof, ; and all requests for additional information shall have been complied with to the satisfaction of the Representative; (b) the representations and warranties of each of BCRC and BCI contained herein are true and correct in all material respects on and as of the Closing Date as if made on and as of the Closing Date and the representations and warranties of each of BCRC and BCI in the Basic Documents will be true and correct in all material respects as of the dates specified in the Basic Documents; and each of BCRC and BCI shall have complied with all agreements and all conditions on its part to be performed or satisfied hereunder and under the Basic Documents at or prior to the Closing Date; (c) subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by BCRC or BCI by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; (d) since the date hereof there shall not have been any material adverse change or any development involving a prospective material adverse change, in or affecting the general affairs, business, management, financial position, stockholders' equity or results of operations of BCRC or BCI, otherwise than as set forth or contemplated in the Prospectus, the effect of which in the reasonable judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Certificates on the Closing Date on the terms and in the manner contemplated in the Prospectus; (e) the Representative shall have received on and as of the Closing Date a certificate of an executive officer of each of BCRC and BCI, in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (A) the representations and warranties of BCRC and BCI, as applicable, in this Agreement are true and correct in all material respects on and as of the Closing Date, (B) such officer has specific knowledge about the financial matters of BCRC and BCI, as applicable, and that each of BCRC and BCI, 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 prior to the Closing Date, (C) the representations and warranties of BCRC and BCI, as applicable, in the Basic Documents are true and correct in all material respects as of the dates specified in the Basic Documents, (D) the Registration Statement has become effective, no stop order suspending the effectiveness of the Registration Statement ~~shall have~~ has been issued and no proceedings for that purpose ~~shall~~ have been instituted oror to BCRC's or BCI's knowledge, are threatened by the Commission, (E) the Prospectus does not contain any untrue statement of a material fact or omit 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 (F) subsequent to the ~~knowledge~~ date of the ~~Depositor~~ Prospectus, there has been no material adverse change in the condition (financial or ~~you~~otherwise) of either BCRC or BCI, as applicable, except as set forth in or contemplated in the Registration Statement and the Prospectus or as described in such certificate; (f) ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President, Legal Affairs and General Counsel of BCI, shall ~~be contemplated by~~ have furnished to the ~~Commission or by any authority administering any state securities or blue sky law. (b) On or prior to~~ Underwriters his written opinion, dated the Closing Date, ~~you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise~~ in form and substance satisfactory to ~~you and your counsel. (c) Subsequent to~~ the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counselRepresentative, to the effect that: (i) ~~DCFS~~ each of BCRC and BCI has been duly ~~organized~~ qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a material adverse effect on it or the transactions contemplated herein or in the Basic Documents; (ii) other than as set forth or contemplated in the Prospectus, there are no legal or governmental investigations, actions, suits or proceedings pending or, to the best of such counsel's knowledge, threatened against or affecting BCRC or BCI or any of their properties, or to which BCRC or BCI is or may be a party or to which any property of BCRC or BCI is or may be the subject (i) that are required to be disclosed in the Registration Statement or the Prospectus, (ii) asserting the invalidity of this Agreement or of any of the Basic Documents, (iii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement or any of the Basic Documents, (iv) that may adversely affect the federal or state income, excise, franchise or similar tax attributes of the Certificates as described in the Prospectus under the headings "Prospectus Summary - Tax Status" and "Certain Federal Income Tax Consequences," (v) that could materially and adversely affect BCRC's or BCI's obligations under this Agreement or any of the Basic Documents or (vi) which, if determined adversely to BCRC or BCI, could individually or in the aggregate reasonably be expected to have a material adverse effect on the general affairs, business, prospects, management, financial position, stockholders' equity or results of operations of BCRC or BCI, taken as a whole, or that would reasonably be expected to materially adversely affect the interests of the holders of the Certificates; (iii) such counsel does not know of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or required to be filed as an exhibit to the Registration Statement that are not described or filed as required; (iv) neither BCRC nor BCI is, nor with the giving of notice or lapse of time or both would be, in violation of or in default under, its Certificate of Incorporation or By-Laws or any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which BCRC or BCI is a party or by which BCRC or BCI or any of their properties are bound, except for violations and defaults which individually and in the aggregate are not material to BCRC and its subsidiaries, taken as a whole, or BCI and its subsidiaries, taken as a whole, or to the holders of the Certificates; the issue and sale of the Certificates and the execution, delivery and performance by BCRC and BCI, as applicable, of the Certificates, the Basic Documents and this Agreement and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach 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 known to such counsel to which BCRC or BCI is a party or by which BCRC or BCI is bound or to which any of the property or assets of BCRC or BCI is subject, nor will any such action conflict with or result in any breach or violation of the provisions of the Certificate of Incorporation, or the By-Laws of BCRC or BCI or any applicable law or statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over BCRC or BCI, or any of their properties; (v) no consent, approval, authorization, order, license, registration, filing or qualification of or with any court or governmental agency or body is required for the issue and sale of the Certificates or the consummation of the other transactions contemplated by this Agreement or the Basic Documents, except such consents, approvals, authorizations, orders, licenses, registrations, filings or qualifications as have been obtained under the Securities Act and as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Certificates by the Underwriter and any financing statements that have been filed in connection with the perfection of the Trust's security interest in the Receivables; and (vi) each of BCRC and BCI owns, possesses or has obtained all licenses, permits, certificates, consents, orders, approvals and other authorizations from, and has made all declarations and filings with, all federal, state, local and other governmental authorities (including foreign regulatory agencies), all self-regulatory organizations and all courts and other tribunals, domestic or foreign, necessary to own or lease, as the case may be, and to operate its properties and to carry on its business as conducted as of the date hereof, and neither BCRC nor BCI has received any actual notice of any proceeding relating to revocation or modification of any such license, permit, certificate, consent, order, approval or other authorization, except as described in the Registration Statement and the Prospectus; and each of BCRC and BCI is in compliance with all laws and regulations relating to the conduct of its business as conducted as of the date of the Prospectus. (g) Ropes & Gray, special counsel for BCI, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance satisfactory to the Representative, to the effect that: (i) BCI is a corporation duly incorporated, validly existing and in good standing under the laws of The Commonwealth of Massachusetts, and has the corporate power and authority to own its properties and assets in Massachusetts and to transact the business in which it is engaged or presently proposes to engage in Massachusetts; (ii) BCI has the requisite corporate power to execute and deliver each Basic Document and this Agreement and to perform its obligations hereunder and thereunder and has taken all necessary corporate action to authorize the execution, delivery and performance of each of the Basic Documents and this Agreement, and each of the Basic Documents and this Agreement have been duly authorized, executed and delivered by BCI; (iii) Neither the execution and delivery by BCI of any Basic Document or this Agreement, nor the consummation by BCI of the transactions therein contemplated, nor the issuance of the Certificates by the Trust or the public offering thereof as contemplated in the Prospectus, will conflict with or result in a ~~limited liability company~~ breach of, or constitute a default (with notice or the passage of time or both) under, or (except as required or permitted pursuant to any Basic Document or this Agreement) result in the imposition of any lien, mortgage, pledge, charge, encumbrance, adverse claim or other security interest of any other person upon any of the property or assets of BCI pursuant to, (1) any provision of any Massachusetts law, governmental rule or regulation currently applicable to BCI or (2) the Articles of Organization or By-Laws of BCI; and (iv) No consent, approval, authorization or order of, or registration, filing or declaration with, any Massachusetts court or governmental agency or governmental body is required (1) for the due execution, delivery and performance by BCI of any Basic Document or this Agreement or (2) for the offer, sale or delivery of the Certificates, except for such consents, approvals, authorizations, orders, registrations, filings or declarations as may be required under state securities or Blue Sky laws. (h) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel for BCRC and BCI, shall have furnished to the Underwriters their written opinion, dated the Closing Date, in form and substance satisfactory to the Representative, to the effect that: (i) BCRC is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.Delaware; (ii) ~~The Company~~ BCRC has ~~been duly organized~~ the requisite corporate power to execute and ~~is validly existing as a limited liability company in good standing under the laws~~ deliver each of the ~~State of Michigan with full power~~ Basic Documents and ~~authority to own its properties and conduct its business as presently conducted by it~~ this Agreement and to ~~enter into and~~ perform its obligations ~~under the Trust Agreement~~ thereunder and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments.hereunder; (iii) Each of ~~DCFS~~ the Basic Documents and this Agreement has been duly authorized by all necessary corporate action on the ~~Company is~~ part of BCRC and duly ~~qualified to do business~~ executed and ~~is in good standing~~delivered by each of BCI and BCRC, and ~~has obtained all necessary licenses~~ constitutes the valid, legal and ~~approvals~~binding obligation of each of BCI and BCRC, enforceable against each of BCI and BCRC in ~~each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee.~~accordance with its terms; (iv) The direction by ~~the Depositor~~ BCRC to the ~~Owner~~ Trustee to execute, authenticate and deliver the Certificates has been duly authorized by all necessary corporate action on the ~~Depositor and~~part of BCRC, ~~when~~ and as of the ~~Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered~~Closing Date, the Certificates will be duly and validly authorized, and, when duly and validly executed and authenticated by the Trustee and delivered to BCRC in accordance with the Pooling and Servicing Agreement, and following delivery to and payment therefor by the Underwriters, will be validly issued and outstanding and entitled to the benefits of the Pooling and ~~security afforded by the Trust~~ Servicing Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).; (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery by BCI or BCRC of the Basic Documents and this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation by BCI or BCRC of ~~any~~ the transactions therein contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the ~~fulfillment~~ issuance of the ~~terms thereof~~ Certificates by ~~DCFS, the Company or~~ the Trust, ~~as the case may be,~~ will conflict ~~with,~~ with or result in a ~~material breach, violation or acceleration~~ breach of, or constitute a default (with notice or passage of time or both) under, or result in the imposition of any ~~term~~ lien, mortgage, pledge, charge, encumbrance, adverse claim or other security interest of any other person upon any of the property or assets of BCI or BCRC pursuant to, except as required or permitted pursuant thereto, (1) any provision of ~~the articles~~ any New York State or federal law, governmental rule or regulation currently applicable to BCI or BCRC (based upon our review of ~~organization~~ those laws, rules and regulations which in our experience are normally applicable to transactions of this type, but without having made a special investigation concerning any other law, rule or ~~operating agreement of DCFS~~ regulation and without expressing any opinion as to any federal or state securities laws, rules or regulations or the ~~Company~~polices underlying such laws), (2) the Certificate of Incorporation or By-Laws of BCRC or (3) any ~~indenture~~ material indenture, mortgage, contract or ~~other material agreement or material instrument~~ other (A) to which ~~DCFS~~ BCI or ~~the Company~~ BCRC is a party or by which either of them is ~~bound~~bound or to which any of their property is subject, (B) currently in effect and (C) as to which such counsel has represented either BCI or BCRC; (vi) No consent, approval, authorization or order of, or ~~result in a violation of~~ registration, filing or ~~contravene the terms of~~ declaration with, any ~~statute, order~~ New York State or ~~regulation applicable to DCFS or the Company of any~~ federal court, ~~regulatory body, administrative~~ governmental agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal is required (1) ~~asserting~~ for the ~~invalidity of the Trust~~ due execution, delivery and performance by BCI or ~~any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any~~ BCRC of the Basic Documents and this Agreement or (2) for the ~~execution~~ offer, issuance, sale or delivery of the Certificates by BCRC in the manner and ~~delivery thereof~~under the circumstances contemplated by the Basic Documents and this Agreement, ~~(3) that might~~ except such as shall have been obtained or made on or prior to the Closing Date, unless the failure to obtain or to make such on or prior to the Closing Date will not materially ~~and~~ adversely affect the ~~performance by DCFS~~ ability of BCI or BCRC to perform its obligations ~~under, or~~ under the ~~validity or enforceability of,~~ Basic Documents and this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement ~~or the Trust Agreement. (xi) To the best knowledge of such counsel~~ and except ~~as set forth in the Prospectus (and any supplement thereto)~~for such consents, ~~no default exists and no event has occurred which~~approvals, ~~with notice~~authorizations, ~~lapse of time~~ orders, registrations, filings or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.declarations required un

Appears in 2 contracts

Sources: Underwriting Agreement (Bombardier Receivables Master Trust I), Underwriting Agreement (Bombardier Credit Receivables Corp)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Offered Notes will~~ Underwritten Securities pursuant to an Underwriting Agreement shall be ~~subject~~ subject, in the discretion of the Representatives acting reasonably, to the accuracy of the representations and warranties on the part of the ~~Depositor herein~~Issuer and the Guarantor in or incorporated by reference in the Underwriting Agreement as of the Execution Time and the Closing Date, to the accuracy of the statements of ~~officers of~~ the ~~Depositor~~ Issuer and the Guarantor made in any certificates pursuant to the provisions ~~hereof~~of this Section, to the performance by the ~~Depositor~~ Issuer and the Guarantor of ~~its~~ their obligations hereunder and to the following additional ~~conditions precedent~~conditions: (ai) The Canadian Prospectus shall have been filed with the Reviewing Authority under the Shelf Procedures and ~~any supplements thereto~~ (ii) the U.S. Prospectus shall have been filed with the Commission pursuant to General Instruction II.K. of Form F-9 and Rule 424(b) under the Act, in each case, within the applicable time period prescribed for such filing and in accordance with ~~the Rules and Regulations and~~ Section ~~7(a~~4(a) hereof~~, and prior to the Closing Date,~~ ; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued by the Commission and no ~~proceedings~~ order preventing or suspending the use of any prospectus relating to the Securities shall have been issued by the Reviewing Authority and no proceeding for ~~that~~ any such purpose shall have been ~~instituted~~ initiated or, to the knowledge of the ~~Depositor~~ Issuer or ~~you~~the Guarantor, ~~shall be contemplated~~ threatened by the Commission or ~~by any authority administering any state securities~~ the Reviewing Authority; and all requests for additional information on the part of the Reviewing Authority or ~~blue sky law~~the Commission shall have been complied with to the Representatives' reasonable satisfaction. (b) ~~On or prior~~ Parent shall have requested and caused Torys LLP, U.S. counsel for the Issuer and the Guarantor, to have furnished to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture TrusteeRepresentatives their opinion, dated the Closing Date and ~~satisfactory in form and substance~~ addressed to ~~you and your counsel~~the Representatives, to the effect that: (i) ~~DCFS~~ The Issuer has been duly organized ~~and is validly existing~~ as a ~~limited liability company in good standing~~ general partnership under the ~~laws of~~ Delaware Revised Uniform Partnership Act with the ~~State of Michigan with full~~ power and authority to own ~~its properties~~ property and to conduct its business as ~~presently conducted by it,~~ described in the U.S. Prospectus and to ~~enter into~~ execute, deliver and perform its obligations under ~~this~~ each of the Underwriting Agreement, the ~~Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement,~~ Underwritten Securities and the ~~Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables~~Indenture.* * Securities issued by PCF. (ii) ~~The Company has been duly organized~~ Each of the Registration Statement and ~~is validly existing~~ the U.S. Prospectus, as ~~a limited liability company~~ of their respective effective or issue dates, appears on its face to be appropriately responsive in ~~good standing~~ all material respects to the requirements of the Act and the rules and regulations of the Commission under the ~~laws~~ Act (the "Rules and Regulations"), except for the financial statements, financial statement schedules and other financial data included or incorporated by reference in or omitted from either of them and the Form T-1, as to which such counsel need express no opinion; the Form F-X, as of its date, appears on its face to be appropriately responsive in all material respects to the requirements of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value PaymentsAct. (iii) ~~Each of DCFS and the Company is duly qualified to do business and is in good standing~~No consent, ~~and has obtained all necessary licenses and approvals~~approval, ~~in each jurisdiction in which failure to qualify~~ authorization or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration order of, or ~~constitute a default under~~filing, registration or qualification with, any ~~term~~ Governmental Authority, which has not been obtained, taken or ~~provision~~ made (other than as required by any state securities laws, as to which such counsel need express no opinion) is required under any Applicable Law for the issuance or sale of the ~~articles of organization~~ Underwritten Securities or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the ~~Company~~ Issuer and the Guarantor of ~~its~~ their respective obligations ~~under, or~~ under the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Underwriting Agreement and the ~~Trust Agreement are other than as stated therein or (y) DCFS contained in~~ Indenture. For purposes of this ~~Agreement~~opinion, the ~~Trust Agreement~~term "Governmental Authority" means any executive, ~~the Purchase Agreement~~ legislative, judicial, administrative or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State regulatory body of the State of ~~Delaware~~ New York or the United States of America. For purposes of this opinion, the term "Applicable Law" means those laws, rules and ~~will constitute a first priority perfected security interest therein. No filing or other action, other than the filing~~ regulations of the ~~UCC-1 financing statements with the Secretary~~ United States of ~~State of~~ America and the State of ~~Delaware referred~~ New York, in each case which in such counsel's experience are normally applicable to ~~above, is necessary to perfect and maintain~~ the ~~interest or the security interest~~ transactions of the ~~Indenture Trustee in~~ type contemplated by the ~~Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties~~Underwriting Agreement. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 2 contracts

Sources: Underwriting Agreement (Petro Canada), Underwriting Agreement (PC Financial Partnership)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and [W▇▇▇▇ Fargo Bank] shall have ~~received~~ delivered to you a ~~letter~~certificate of [W▇▇▇▇ Fargo Bank], signed by an authorized officer of [W▇▇▇▇ Fargo Bank] and dated the Closing Date, to the effect that: (i) the representations and warranties of [W▇▇▇▇ Fargo Bank] 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if[W▇▇▇▇ Fargo Bank] has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to [W▇▇▇▇ Fargo Bank], a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the [State of North Carolina]. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of [W▇▇▇▇ Fargo Bank], in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of [W▇▇▇▇ Fargo Bank], 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 [W▇▇▇▇ Fargo Bank]) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of [W▇▇▇▇ Fargo Bank] 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 [W▇▇▇▇ Fargo Bank]) of the articles of association and by-laws of [W▇▇▇▇ Fargo Bank], as in effect on the Closing Date, and of the resolutions of [W▇▇▇▇ Fargo Bank] and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to [W▇▇▇▇ Fargo Bank], one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-▇, ▇-▇ and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet [and (D) the Supplement][INCLUDE BRACKETED LANGUAGE ONLY IF A SUPPLEMENT TO PRELIMINARY PROSPECTUS WAS FILED PRIOR TO THE DATE OF THE UNDERWRITING AGREEMENT] agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Underwritten Certificates on the Closing Date are as described in Section 1(a)(xv) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus, is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor” in the Prospectus, is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator and the Asset Representations Reviewer a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Underwritten Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Securities Inc), Underwriting Agreement (Wells Fargo Commercial Mortgage Securities Inc)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and Barclays Holdings contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and (a) in the case of BCREI, Barclays Holdings to the same extent as BCREI and (b) in the case of BSPRT, FBSPRT to the same extent as BSPRT) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and Barclays Holdings shall have ~~received~~ delivered to you a ~~letter~~certificate of Barclays Holdings, signed by an authorized officer of Barclays Holdings and dated the Closing Date, to the effect that: (i) the representations and warranties of Barclays Holdings 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifBarclays Holdings has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received with respect to Barclays Holdings and the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in their individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of formation and limited liability company agreement of the Depositor, as in effect on the Closing Date, and (ii) you shall have received from the Secretary or an Assistant Secretary of Barclays Holdings, in their individual capacity, a certificate, dated the Closing Date, to the effect that: (A) each individual who, as an officer or representative of Barclays Holdings, 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 (B) no event (including, without limitation, any act or omission on the part of Barclays Holdings) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of Barclays Holdings under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of Barclays Holdings) of the certificate of incorporation, by-laws or similar organizational documents of Barclays Holdings, as in effect on the Closing Date, and of the resolutions of Barclays Holdings. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to Barclays Holdings, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in their individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Certificate Administrator and ~~are~~ Trustee” in the Prospectus is true and correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator and Trustee” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Operating Advisor, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Asset Representations Reviewer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (BBCMS Mortgage Trust 2025-C39), Underwriting Agreement (BBCMS Mortgage Trust 2025-5c38)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and BANA contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and BANA shall have ~~received~~ delivered to you a ~~letter~~certificate of BANA, signed by an authorized officer of BANA and dated the Closing Date, to the effect that: (i) the representations and warranties of BANA 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifBANA has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor, a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of BANA, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of BANA, 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 BANA) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of BANA 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 BANA) of the articles of association and by-laws of BANA, as in effect on the Closing Date, and of the resolutions of BANA and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Reports and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee and the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Certificate Administrator and ~~are~~ Trustee” in the Prospectus is true and correct in all material respects. (~~xix~~l) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The ~~statements contained~~ Master Servicer” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (p) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (q) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (r) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (s) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (Morgan Stanley Bank of America Merrill Lynch Trust 2025-C35), Underwriting Agreement (Bank5 2023-5yr3)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and MSMCH contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and MSMCH shall have ~~received~~ delivered to you a ~~letter~~certificate of MSMCH, signed by an authorized officer of MSMCH and dated the Closing Date, to the effect that: (i) the representations and warranties of MSMCH 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifMSMCH has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to MSMCH, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of MSMCH, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of MSMCH, 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 MSMCH) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of MSMCH 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 MSMCH) of the articles of association and by-laws of MSMCH, as in effect on the Closing Date, and of the resolutions of MSMCH and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to MSMCH, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the General Master ▇▇▇▇▇▇▇▇, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicers—▇▇▇▇▇ Fargo Bank, National Association” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicers—Midland Loan Services, a Division of PNC Bank, National Association” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, each Master Servicer, each Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. (u) You shall have received from the Secretary or an Assistant Secretary of the NCB Master Servicer and the NCB Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicers—National Cooperative Bank, N.A.” and “Transaction Parties—The Special Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (Bank 2018-Bnk11), Underwriting Agreement (Bank 2017-Bnk8)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; and to (iv) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Depositor’s knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and RBS shall have ~~received~~ delivered to you a ~~letter~~certificate of RBS, signed by an authorized officer of RBS and dated the Closing Date, to the effect that: (i) the representations and warranties of RBS 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifRBS has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to RBS, a good standing certificate from the Registrar of Companies for Scotland and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of RBS Securities (as agent for RBS), in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of RBS Securities (as agent for RBS), 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 RBS) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of RBS under the laws of Scotland. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of RBS Securities (as agent for RBS)) of the certificate of incorporation, resolutions and articles of association of RBS, as in effect on the Closing Date, and of the resolutions of RBS and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel for the Depositor (in the ~~office~~ case of the ~~General Counsel~~ following clauses (i) through (v)) and from special counsel to the Depositor (in the case of ~~DCFS and~~ the ~~Company~~following clauses (vi) through (xii)), ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date and satisfactory in form and substance to you and ~~your counsel,~~ counsel for the Underwriters substantially to the effect that: (i) ~~DCFS has been~~ The Depositor is a corporation, duly ~~organized and is~~ incorporated, validly existing ~~as a limited liability company~~ and in good standing under the laws of the State of ~~Michigan with full~~ Delaware, and has all requisite corporate power and authority to ~~own its properties and conduct its business as presently conducted by it~~execute, ~~and to enter into~~ deliver and perform its obligations under ~~this Agreement,~~ each of the ~~Sale~~ Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements and this Agreement~~, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables~~. (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ Neither the ~~laws~~ issuance or sale of the ~~State~~ Underwritten Certificates nor the execution, delivery or performance of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under~~ the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each terms of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale Pooling and Servicing Agreement and the ~~Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance~~ Mortgage Loan Purchase Agreements conflicts with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a ~~material breach,~~ breach or violation ~~or acceleration~~ of, or constitute a default under, ~~any term or provision of~~ (a) the articles of ~~organization~~ incorporation or ~~operating agreement~~ by-laws of ~~DCFS or~~ the ~~Company~~Depositor, ~~or of~~ (b) to such counsel’s knowledge, any indenture or other ~~material~~ agreement or ~~material~~ instrument to which ~~DCFS or~~ the ~~Company~~ Depositor is a party or by which ~~either of them~~ it is bound, ~~or result in a violation of or contravene the terms of~~ (c) any ~~statute, order~~ statute or regulation applicable to ~~DCFS~~ the Depositor, or ~~the Company~~ (d) to such counsel’s knowledge, any order of any court, regulatory body, administrative agency or governmental body having jurisdiction over ~~either of them~~the Depositor. (xiii) ~~There~~ To such counsel’s knowledge, there are no legal or governmental actions, investigations or proceedings pending to which the Depositor is a party, or ~~investigations pending or~~threatened against the Depositor, ~~to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal~~ that (1a) ~~asserting~~ assert the invalidity of this Agreement, the ~~Trust~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements or ~~any~~ the Certificates, (b) seeks to prevent the issuance of the ~~Basic Documents, (2) seeking to prevent~~ Certificates or the consummation of any of the transactions contemplated by ~~any of~~ this Agreement, the ~~Basic Documents~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements or ~~the execution and delivery thereof,~~ (3c) ~~that might~~ would materially and adversely affect the performance by ~~DCFS~~ the Depositor of its obligations under, or the validity or enforceability of, any of this Agreement, the ~~Purchase Agreement, the Trust Agreement, the Sale~~ Pooling and Servicing ~~Agreement~~Agreement and the Mortgage Loan Purchase Agreements or the Certificates or any material rights with regard to any Mortgaged Property, or ~~the Administration Agreement~~if adversely determined, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial ~~condition, earnings, prospects, business or properties~~ condition of the ~~Depositor and its subsidiaries~~Depositor; for purposes of the foregoing, ~~taken as~~ such counsel will be permitted to state that he or she has not regarded any legal or governmental actions, investigations or proceedings to be “threatened” unless the potential litigant or governmental authority has manifested to such counsel a ~~whole~~present intention to initiate such actions, investigations or proceedings. (~~xii~~iv) ~~Nothing has come to such counsel's attention that would lead such counsel to believe that~~ Each of this Agreement, the ~~representations~~ Pooling and ~~warranties of (x) the Company contained in the Purchase~~ Servicing Agreement and the ~~Trust~~ Mortgage Loan Purchase Agreements has been duly authorized, executed and delivered by the Depositor. (v) Based upon such counsel’s review of those laws, regulations and rules of the State of New York and the United States of America that are normally applicable to transactions of the type contemplated by this Agreement, the Pooling and Servicing Agreement ~~are~~ and the Mortgage Loan Purchase Agreements, to the knowledge of such counsel, no consent, approval, authorization of, registration or filing with, or notice to, any state or federal court or other ~~than as stated therein~~ governmental agency or ~~(y) DCFS contained~~ body is required for the consummation by the Depositor of the transactions contemplated in this Agreement, the ~~Trust~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements, except (i) such as may be required under the “Blue Sky” laws of any jurisdiction in connection with the purchase and the offer and sale of the Underwritten Certificates by the Underwriters, as to which such counsel may express no opinion; (ii) any recordation of the assignments of the Mortgage Loans required under the Pooling and Servicing Agreement that has not yet been completed; and (iii) those that, if not so obtained, would not materially and adversely affect the ability of the Depositor to perform its obligations under this Agreement, the ~~Purchase Agreement or the Sale~~ Pooling and Servicing Agreement ~~are other than as stated therein~~and the Mortgage Loan Purchase Agreements. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviiivi) The statements in the Prospectus under the headings ~~"Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles"~~ “ERISA Considerations” and ~~"-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables"~~“Material Federal Income Tax Consequences”, to the extent that they ~~constitute~~ describe certain matters of federal law or legal conclusions with respect thereto, ~~have been reviewed~~ provide a fair and accurate summary of such matters and conclusions; (vii) As described in the Prospectus Supplement and assuming compliance with the Pooling and Servicing Agreement, each of REMIC I, REMIC II and REMIC III will qualify as a REMIC within the meaning of Sections 860A through 860G (the “REMIC Provisions”) of the Internal Revenue Code of 1986, as amended (the “Code”); (viii) The Pooling and Servicing Agreement should not be required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund created under the Pooling and Servicing Agreement is not required to be registered under the Investment Company Act; (ix) Each of the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement constitutes the legal, valid and binding agreement of the Depositor, enforceable against the Depositor 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 ~~such counsel~~ jury, oral amendments to written agreements or rights of set off, (b) provisions relating to submission to jurisdiction, venue or service of process or (c) provisions purporting to prohibit, restrict or condition the assignment of, or grant of a security interest in, the rights under the Mortgage Loan Purchase Agreements or the Pooling and ~~are correct~~ Servicing Agreement or property subject thereto, may be limited by applicable law or considerations of public policy; (x) The Registration Statement, as of its effective date, and the Prospectus, as of the date thereof (in each case, with the exception of any information incorporated by reference therein, any numerical, financial, statistical and computational information included therein, any Mortgage Loan Seller Covered Information, any Master Servicer Covered Information, any Special Servicer Covered Information, any Primary Servicer Covered Information, any Certificate Administrator Covered Information, any Trust Advisor Covered Information and any Trustee Covered Information), appeared on their respective faces to be appropriately responsive in all material ~~respects.~~respects to the requirements of the 1933 Act and the rules and regulations thereunder applicable to such documents as of the relevant date; (~~xix~~xi) The statements contained in the Prospectus ~~and any supplement thereto~~ Supplement under the ~~headings "Payments on~~ heading “Description of the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture"~~Offered Certificates”, insofar as such statements ~~constitute a summary~~ purport to summarize material terms of the ~~Notes~~Certificates, are correct in all material respects; and (xii) When the ~~Indenture~~Certificates have been duly authorized, executed, authenticated and delivered in the ~~Administration Agreement,~~ manner contemplated in the ~~Purchase Agreement, the Sale~~ Pooling and Servicing Agreement and the ~~Trust~~ Underwritten Certificates have been paid for by, and sold to the Underwriters pursuant to this Agreement, ~~constitute~~ the Underwritten Certificates 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 and on certificates furnished by public officials. Such opinion, to the extent covering clauses (iv), (ix) and (xii), may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto. Such opinion, to the extent covering clause (iv) and clauses (vi) through (xii) may be qualified as an opinion only on the laws of the State of New York and the federal law of the United States. You shall have also been advised by special counsel to the Depositor, in one of the foregoing opinions, dated the Closing Date and satisfactory in form and substance to you and counsel for the Underwriters, substantially to the effect that (i) the Registration Statement became effective on a ~~fair summary~~ date certain under the 1933 Act, (ii) to such counsel’s knowledge, the Registration Statement is effective on the Closing Date and (iii) to such counsel’s knowledge, no stop order with respect thereto has been issued by the Commission. You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (g) You shall have received from Scottish counsel to RBS (in the case of the following clauses (i) and (iii)(a)) and in-house counsel to RBS Securities, as agent for RBS (in the case of the following clauses (ii), (iii)(b), (iv) and (v)), one or more favorable opinions, dated the Closing Date and satisfactory in form and substance to you and counsel for the Underwriters, to the effect that: (i) RBS is a public limited company duly organized, validly existing and in good standing under the laws of Scotland and has all requisite power and authority to enter into and perform its obligations under this Agreement. (ii) This Agreement has been duly authorized, executed and delivered on behalf of RBS by RBS Securities (as its agent). (a) No authorization, approval, consent, license, exemption, filing, registration, notarization or other requirement of government, judicial or public bodies and authorities of or in Scotland is required to be obtained by RBS in connection with the consummation by RBS of the transactions contemplated by this Agreement; (b) Based upon such ~~documents.~~counsel’s review of those laws, regulations and rules of the State of New York and the United States of America that are normally applicable to transactions of the type contemplated by the Agreement, to such counsel’s knowledge, no consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is

Appears in 2 contracts

Sources: Underwriting Agreement (WFRBS Commercial Mortgage Trust 2013-C17), Underwriting Agreement (WFRBS Commercial Mortgage Trust 2013-C11)

Conditions to the Obligations of the Underwriters. The obligations of ~~the Underwriters~~ each Underwriter to purchase and pay for ~~the Offered Notes will~~ Designated Securities shall be subject to the accuracy of the representations and warranties on the part of ~~the Depositor herein~~Québec in this Agreement, to the accuracy of the statements of ~~officers~~ authorized representatives of ~~the Depositor~~ Québec made pursuant to the provisions ~~hereof~~hereof or thereof, to the performance by ~~the Depositor~~ Québec of ~~its~~ their obligations hereunder and thereunder and to the following additional conditions precedent: (a) ~~The Prospectus and any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior~~ Prior to the Closing ~~Date,~~ Date no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of ~~the Depositor~~ Québec or ~~you~~any Underwriter, shall be contemplated by the ~~Commission~~ SEC; and no proceedings or actions shall have been instituted by or, to the knowledge of Québec or any Underwriter, shall be contemplated by any Canadian regulatory authority ~~administering any state securities or blue sky law~~having jurisdiction over the offering of the Designated Securities; and the Prospectus shall have been filed with the SEC pursuant to Rule 424(b) not later than 5:00 P.M., New York City time, on the second business day following the date of the Terms Agreement; and the term sheet contemplated by Section 3(a) shall have been filed with the SEC pursuant to Rule 433(d) under the 1933 Act. (b) On or prior to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of ~~this~~ the Terms Agreement ~~or, if earlier,~~ and on or prior to the ~~dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto)~~Closing Date, there shall not have occurred ~~(i)~~ any ~~change~~ material adverse change, or any development involving a prospective ~~change~~ material adverse change, in or affecting particularly the ~~business or properties~~ financial condition of ~~the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG~~ Québec which, in the judgment of the Underwriters, materially impairs the investment quality of the ~~Offered Notes~~ Designated Securities. (c) Subsequent to the execution and delivery of the Terms Agreement and on or ~~makes it impractical~~ prior to the Closing Date, there shall not have occurred (i) any downgrading in the rating of any debt securities of Québec by any nationally recognized statistical rating organization, or ~~inadvisable to market the Offered Notes~~any public announcement that any such organization has under surveillance or review its rating of any debt securities of Québec (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange~~; (iii)~~ , or any suspension or limitation of trading of any securities of ~~DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor~~ Québec on any exchange or in the over-the-counter ~~market~~market in Canada, the United States, the United Kingdom, Japan or elsewhere; or (iviii) any banking moratorium declared by ~~federal~~ Canadian, United States or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) ~~You~~ The Underwriters shall have received an from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for Québec, such opinion ~~of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee~~or opinions, dated the Closing ~~Date and satisfactory in form and substance to you and your counsel~~Date, with respect to the ~~effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under~~ validity of any Designated Securities, the ~~laws of~~ Registration Statement, the ~~State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~Prospectus, and ~~to enter into and perform its obligations under this Agreement,~~ other related matters as the ~~Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement~~Underwriters may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the ~~Administration Agreement~~purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and ~~had at all times,~~ procedure and ~~now has,~~ upon a certificate of Québec as to the ~~power, authority~~ debt securities of Québec outstanding on the Closing Date; and ~~legal right~~ no opinion need be expressed by such counsel as to ~~acquire, own, sell~~ the financial statements or other financial data contained in the Registration Statement and ~~service~~ the ~~Receivables~~Prospectus. (iie) The ~~Company has been duly organized~~ Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Canada LLP, Canadian counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the validity of any Designated Securities, the Registration Statement, the Prospectus, and ~~is validly existing~~ other related matters as the Underwriters may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and upon a ~~limited liability company~~ certificate of Québec as to the debt securities of Québec outstanding on the Closing Date; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in ~~good standing under~~ the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement Registration Statement and the ~~Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments~~Prospectus. (~~iii~~f) ~~Each~~ The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the validity of ~~DCFS~~ any Designated Securities, the Registration Statement, the Prospectus, and other related matters as the Underwriters may reasonably request, and Québec shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, such counsel may rely upon the opinions of counsel named in paragraphs (d) and (e) of this Section 5 as to matters of Canadian and Québec law; and no opinion need be expressed by such counsel as to the financial statements or other financial data contained in the Registration Statement and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture TrusteeProspectus. (ivg) The ~~direction by~~ Underwriters shall have received a certificate of the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and deliveredministre des Finances (Minister of Finance), the ~~Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement~~ sous-ministre des Finances (Deputy Minister of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at lawFinance). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the ~~Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement~~ sous-ministre associé des Finances (Associate Deputy Minister of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at lawFinance). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or any other authorized official at the ~~Sale and Servicing Agreement by DCFS~~Ministère des Finances, ~~nor~~ dated the ~~execution and delivery of the Trust Agreement and the Purchase Agreement by the Company~~Closing Date, ~~nor the consummation of any transactions contemplated~~ in ~~this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (~~which such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending orofficial shall, to the best of ~~such counsel's~~ his knowledge after ~~due inquiry~~reasonable investigation, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe state that the representations and warranties of ~~(x)~~ Québec in this Agreement are true and correct, that Québec has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the ~~Company contained~~ Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC, and that, subsequent to the date of the most recent financial statements included or incorporated by reference in the ~~Purchase Agreement and~~ Prospectus, there has been no material adverse change, or any development involving a prospective material adverse change, in the ~~Trust Agreement are other than~~ financial condition of Québec except as ~~stated therein~~ set forth or ~~(y) DCFS contained~~ contemplated in ~~this Agreement,~~ the ~~Trust Agreement, the Purchase Agreement~~ Prospectus or ~~the Sale and Servicing Agreement are other than~~ as ~~stated therein~~described in such certificate. (~~xiii~~h) ~~The Depositor is~~ Québec shall have furnished to the ~~sole owner~~ Underwriters and their counsel accurate English translations of all ~~right~~Orders in Council and Ministerial Orders of the Gouvernement du Québec, ~~title~~ relating to the authorization, issuance and ~~interest in~~sale of the Designated Securities, and ~~has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment~~ of ~~the Receivables,~~ all documents and ~~instruments relating thereto and all proceeds thereof to the Trust,~~ certificates delivered pursuant to the ~~Sale and Servicing Agreement~~foregoing paragraphs of this Section 5, ~~vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted~~ which pursuant to the ~~Sale and Servicing Agreement~~ laws of Québec were adopted, passed, enacted or ~~any other Basic Document~~drawn in the French language. (~~xiv~~i) ~~Immediately~~ The parties to the Fiscal Agency Agreement shall have, on or prior to the ~~transfer of the Receivables to the Trust~~Closing Date, ~~the Depositor's interest~~ executed such agreement in the ~~Receivables~~agreed form with such modifications as the Underwriters, ~~the security interests in the Financed Vehicles securing the Receivables~~ Québec and the ~~proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein~~Fiscal Agent, respectively, may approve. (xvj) ~~The Indenture constitutes a grant by the Trust~~ Québec shall have furnished to the ~~Indenture Trustee~~ Underwriters or their counsel such further certificates and documents as the Underwriters or their counsel may reasonably request. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are satisfactory to the Underwriters and to Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Canada LLP and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters. Québec will furnish the Underwriters with such conformed copies of ~~a valid security interest~~ such opinions, certificates, letters and documents as the Underwriters request. In case any of the conditions specified above in this Section 5 shall not have been fulfilled on or before the Closing Date, the Underwriters may (with the approval of Québec in the ~~Receivables~~case of Section 5(i) above) waive compliance with any such conditions by delivering written notice thereof to Québec, or the ~~security interests in~~ Underwriters may terminate this Agreement without liability on the ~~Financed Vehicles securing the Receivables and the proceeds of each~~ part of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest Underwriters or the ~~security interest~~ Underwriters or of Québec, except for the ~~Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables~~ expenses to be paid or reimbursed by Québec pursuant to Section 6(c) hereof and ~~the proceeds of each of the foregoing against third parties~~except for any liability under Section 7 hereof. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 2 contracts

Sources: Terms Agreement (Quebec), Terms Agreement (Quebec)

Appears in 2 contracts

Sources: Underwriting Agreement (Bank 2021-Bnk35), Underwriting Agreement (Bank 2021-Bnk32)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and UBS AG contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and UBS AG shall have ~~received~~ delivered to you a ~~letter~~certificate of UBS AG, signed by an authorized officer of UBS AG and dated the Closing Date, to the effect that: (i) the representations and warranties of UBS AG 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifUBS AG has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to UBS AG, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of UBS AG, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of UBS AG, 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 UBS AG) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of UBS AG 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 UBS AG) of the articles of association and by-laws of UBS AG, as in effect on the Closing Date, and of the resolutions of UBS AG and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to UBS AG, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of each Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee and ~~are~~ the Certificate Administrator” in the Prospectus is true and correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Trustee and the Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer and the Special Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Master Servicer and the Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Master Servicer, the Special Servicer, each Primary Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (UBS Commercial Mortgage Trust 2017-C6), Underwriting Agreement (UBS Commercial Mortgage Trust 2017-C6)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and UBS AG contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and UBS AG shall have ~~received~~ delivered to you a ~~letter~~certificate of UBS AG, signed by an authorized officer of UBS AG and dated the Closing Date, to the effect that: (i) the representations and warranties of UBS AG 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifUBS AG has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to UBS AG, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of UBS AG, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of UBS AG, 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 UBS AG) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of UBS AG 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 UBS AG) of the articles of association and by-laws of UBS AG, as in effect on the Closing Date, and of the resolutions of UBS AG and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to UBS AG, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of each Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties— The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Master Servicer, the Special Servicer, each Primary Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (UBS Commercial Mortgage Trust 2018-C8), Underwriting Agreement (UBS Commercial Mortgage Trust 2017-C7)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and MSMCH contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and MSMCH shall have ~~received~~ delivered to you a ~~letter~~certificate of MSMCH, signed by an authorized officer of MSMCH and dated the Closing Date, to the effect that: (i) the representations and warranties of MSMCH 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifMSMCH has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to MSMCH, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of MSMCH, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of MSMCH, 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 MSMCH) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of MSMCH 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 MSMCH) of the articles of association and by-laws of MSMCH, as in effect on the Closing Date, and of the resolutions of MSMCH and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to MSMCH, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (Bank 2017-Bnk5), Underwriting Agreement (Morgan Stanley Capital I Trust 2016-Bnk2)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Offered Notes will~~ Securities shall be subject to the accuracy of the representations and warranties on the part of the ~~Depositor herein~~Province contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy of the statements of ~~officers of~~ the ~~Depositor~~ Province made in any certificate furnished pursuant to the provisions hereof, to the performance by the ~~Depositor~~ Province of its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) ~~The Prospectus and any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Depositor~~ Province or ~~you,~~ the Representatives shall be contemplated by the ~~Commission~~ SEC; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 P.M., New York City time, on the second business day following the date hereof or transmitted by ~~any authority administering any state securities or blue sky law~~a means reasonably calculated to result in filing with the SEC by such date; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the U.S. Securities Act, shall have been filed with the SEC under the U.S. Securities Act. (b) On ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have furnished to the Representatives, on behalf of the Underwriters, on or prior to the Closing Date, ~~you shall have received~~ a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an written opinion ~~of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee,~~ dated the Closing Date ~~and satisfactory in form and substance to you and your counsel,~~ to the effect that, based on the assumptions and subject to the qualifications set forth therein: (i) ~~DCFS~~ all necessary action has been duly ~~organized~~ taken by or on behalf of the Province, and ~~is validly existing as a limited liability company in good standing~~ all necessary approvals and consents required under the ~~laws~~ Applicable Laws have been obtained, to authorize the issuance and sale of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.Securities; (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement Global Security has been duly authorized, executed and delivered by ~~DCFS. (viii) The Purchase Agreement~~ the Province in accordance with the Applicable Laws and ~~the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal,~~ constitutes a valid and legally binding ~~obligations~~ obligation of the ~~Company~~ Province, enforceable against the ~~Company~~ Province in accordance with ~~their~~ its terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.;

Appears in 2 contracts

Sources: Underwriting Agreement (Province of New Brunswick), Underwriting Agreement (Province of New Brunswick)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and Barclays Holdings contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and (a) in the case of Barclays, Barclays Holdings to the same extent as Barclays, (b) in the case of SGFC, Société Générale to the same extent as SGFC and (c) in the case of BSPRTCF, FBSPRT to the same extent as BSPRTCF) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and Barclays Holdings shall have ~~received~~ delivered to you a ~~letter~~certificate of Barclays Holdings, signed by an authorized officer of Barclays Holdings and dated the Closing Date, to the effect that: (i) the representations and warranties of Barclays Holdings 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifBarclays Holdings has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received with respect to Barclays Holdings and the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in their individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of formation and limited liability company agreement of the Depositor, as in effect on the Closing Date, and (ii) you shall have received from the Secretary or an Assistant Secretary of Barclays Holdings, in their individual capacity, a certificate, dated the Closing Date, to the effect that: (A) each individual who, as an officer or representative of Barclays Holdings, 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 (B) no event (including, without limitation, any act or omission on the part of Barclays Holdings) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of Barclays Holdings under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of Barclays Holdings) of the certificate of incorporation, by-laws or similar organizational documents of Barclays Holdings, as in effect on the Closing Date, and of the resolutions of Barclays Holdings. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to Barclays Holdings, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in their individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Certificate Administrator and ~~are~~ Trustee” in the Prospectus is true and correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator and Trustee” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Primary Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Primary Servicer under the heading “Transaction Parties—The Primary Servicer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Operating Advisor, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from an officer of the Asset Representations Reviewer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (r) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Master Servicer, the Special Servicer, the Primary Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator, a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (u) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (BBCMS Mortgage Trust 2024-5c25), Underwriting Agreement (BBCMS Mortgage Trust 2024-5c25)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and ~~any supplement thereto~~ correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the General Master ▇▇▇▇▇▇▇▇, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the ~~headings "Payments on~~ heading “Transaction Parties—The Master Servicers—▇▇▇▇▇ Fargo Bank, National Association” in the ~~Notes", "Payments on~~ Prospectus is true and correct in all material respects. (n) You shall have received from the ~~Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ Secretary or an Assistant Secretary of the ~~Notes~~General Special Servicer, in his individual capacity, a certificate, dated the ~~Indenture~~Closing Date, to the ~~Administration Agreement,~~ effect that the ~~Purchase Agreement,~~ information relating to the ~~Sale and Servicing Agreement and~~ General Special Servicer under the ~~Trust Agreement, constitute a fair summary of such documents.~~heading

Appears in 2 contracts

Sources: Underwriting Agreement (Bank 2018-Bnk13), Underwriting Agreement (Bank 2018-Bnk10)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes ▇-▇, ▇-▇ and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2017-C42), Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2017-C40)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and MSMCH contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and MSMCH shall have ~~received~~ delivered to you a ~~letter~~certificate of MSMCH, signed by an authorized officer of MSMCH and dated the Closing Date, to the effect that: (i) the representations and warranties of MSMCH 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifMSMCH has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to MSMCH, a good standing certificate from the Secretary of State of the State of New York and (ii) with respect to the Depositor, a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of MSMCH, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of MSMCH, 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 MSMCH) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of MSMCH 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 MSMCH) of the articles of organization and operating agreement of MSMCH, as in effect on the Closing Date, and of the resolutions of MSMCH and any required member consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to MSMCH, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 2 contracts

Sources: Underwriting Agreement (Bank 2019-Bnk23), Underwriting Agreement (Bank 2019-Bnk17)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; and to (iv) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Depositor’s knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel for the Depositor (in the ~~office~~ case of the ~~General Counsel~~ following clauses (i) through (v)) and from special counsel to the Depositor (in the case of ~~DCFS and~~ the ~~Company~~following clauses (vi) through (xii)), ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date and satisfactory in form and substance to you and ~~your counsel,~~ counsel for the Underwriters substantially to the effect that: (i) ~~DCFS has been~~ The Depositor is a corporation, duly ~~organized and is~~ incorporated, validly existing ~~as a limited liability company~~ and in good standing under the laws of the State of ~~Michigan with full~~ North Carolina, and has all requisite corporate power and authority to ~~own its properties and conduct its business as presently conducted by it~~execute, ~~and to enter into~~ deliver and perform its obligations under ~~this Agreement,~~ each of the ~~Sale~~ Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements and this Agreement~~, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables~~. (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ Neither the ~~laws~~ issuance or sale of the ~~State~~ Underwritten Certificates nor the execution, delivery or performance of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under~~ the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each terms of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale Pooling and Servicing Agreement and the ~~Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance~~ Mortgage Loan Purchase Agreements conflicts with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a ~~material breach,~~ breach or violation ~~or acceleration~~ of, or constitute a default under, ~~any term or provision of~~ (a) the articles of ~~organization~~ incorporation or ~~operating agreement~~ by-laws of ~~DCFS or~~ the ~~Company~~Depositor, ~~or of~~ (b) to such counsel’s knowledge, any indenture or other ~~material~~ agreement or ~~material~~ instrument to which ~~DCFS or~~ the ~~Company~~ Depositor is a party or by which ~~either of them~~ it is bound, ~~or result in a violation of or contravene the terms of~~ (c) any ~~statute, order~~ statute or regulation applicable to ~~DCFS~~ the Depositor, or ~~the Company~~ (d) to such counsel’s knowledge, any order of any court, regulatory body, administrative agency or governmental body having jurisdiction over ~~either of them~~the Depositor. (xiii) ~~There are no actions, proceedings or investigations pending or, to~~ To the best of such counsel~~'s knowledge after due inquiry~~’s knowledge, there are no legal or governmental actions, investigations or proceedings pending to which the Depositor is a party, or threatened ~~before any court~~against the Depositor, ~~administrative agency or other tribunal~~ that (1a) ~~asserting~~ assert the invalidity of this Agreement, the ~~Trust~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements or ~~any~~ the Certificates, (b) seeks to prevent the issuance of the ~~Basic Documents, (2) seeking to prevent~~ Certificates or the consummation of any of the transactions contemplated by ~~any of~~ this Agreement, the ~~Basic Documents~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements or ~~the execution and delivery thereof,~~ (3c) ~~that might~~ would materially and adversely affect the performance by ~~DCFS~~ the Depositor of its obligations under, or the validity or enforceability of, any of this Agreement, the ~~Purchase Agreement, the Trust Agreement, the Sale~~ Pooling and Servicing ~~Agreement~~Agreement and the Mortgage Loan Purchase Agreements or the Certificates or any material rights with regard to any Mortgaged Property, or ~~the Administration Agreement~~if adversely determined, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial ~~condition, earnings, prospects, business or properties~~ condition of the ~~Depositor and its subsidiaries~~Depositor; for purposes of the foregoing, ~~taken as~~ such counsel will be permitted to state that he or she has not regarded any legal or governmental actions, investigations or proceedings to be “threatened” unless the potential litigant or governmental authority has manifested to such counsel a ~~whole~~present intention to initiate such actions, investigations or proceedings. (~~xii~~iv) ~~Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties~~ Each of ~~(x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in~~ this Agreement, the ~~Trust~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements has been duly authorized, executed and delivered by the Depositor. (v) No consent, approval, authorization of, registration or filing with, or notice to, any State of North Carolina (pursuant to the North Carolina Business Corporation Act) or other governmental agency or body is required for the execution, delivery or performance of, or compliance by, the Depositor with this Agreement, the ~~Purchase Agreement or the Sale~~ Pooling and Servicing Agreement ~~are other than~~ and the Mortgage Loan Purchase Agreements, except (i) such as ~~stated therein~~may be required under the “Blue Sky” laws of any jurisdiction in connection with the purchase and the offer and sale of the Underwritten Certificates by the Underwriters, as to which such counsel may express no opinion and (ii) any recordation of the assignments of the Mortgage Loans required under the Pooling and Servicing Agreement that has not yet been completed. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviiivi) The statements in the Prospectus under the headings ~~"Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles"~~ “ERISA Considerations” and ~~"-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables"~~“Material Federal Income Tax Consequences”, to the extent that they ~~constitute~~ describe certain matters of federal law or legal conclusions with respect thereto, ~~have been reviewed~~ provide a fair and accurate summary of such matters and conclusions; (vii) As described in the Prospectus Supplement and assuming compliance with the Pooling and Servicing Agreement, each of REMIC I, REMIC II and REMIC III will qualify as a REMIC within the meaning of Sections 860A through 860G (the “REMIC Provisions”) of the Internal Revenue Code of 1986, as amended (the “Code”); (viii) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund created under the Pooling and Servicing Agreement is not required to be registered under the Investment Company Act; (ix) Each of the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement constitutes the legal, valid and binding agreement of the Depositor, enforceable against the Depositor 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 ~~such counsel~~ jury, oral amendments to written agreements or rights of set off, (b) provisions relating to submission to jurisdiction, venue or service of process or (c) provisions purporting to prohibit, restrict or condition the assignment of, or grant of a security interest in, the rights under the Mortgage Loan Purchase Agreements or the Pooling and ~~are correct~~ Servicing Agreement or property subject thereto, may be limited by applicable law or considerations of public policy; (x) The Registration Statement, as of its effective date, and the Prospectus, as of the date thereof (in each case, with the exception of any information incorporated by reference therein, any numerical, financial, statistical and computational information included therein, any Mortgage Loan Seller Covered Information, any Master Servicer Covered Information, any Special Servicer Covered Information, any Primary Servicer Covered Information, any Certificate Administrator Covered Information, any Trust Advisor Covered Information and any Trustee Covered Information), appeared on their respective faces to be appropriately responsive in all material ~~respects.~~respects to the requirements of the 1933 Act and the rules and regulations thereunder applicable to such documents as of the relevant date; (~~xix~~xi) The statements contained in the Prospectus ~~and any supplement thereto~~ Supplement under the ~~headings "Payments on~~ heading “Description of the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture"~~Offered Certificates”, insofar as such statements ~~constitute a summary~~ purport to summarize material terms of the ~~Notes~~Certificates, are correct in all material respects; and (xii) When the ~~Indenture~~Certificates have been duly authorized, executed, authenticated and delivered in the ~~Administration Agreement,~~ manner contemplated in the ~~Purchase Agreement, the Sale~~ Pooling and Servicing Agreement and the ~~Trust~~ Offered Certificates have been paid for by, and sold to the Underwriters pursuant to this Agreement, ~~constitute~~ the Offered Certificates 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 and on certificates furnished by public officials. Such opinion, to the extent covering items (iv), (ix) and (xii), may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto. Such opinion, to the extent covering item (iv) and items (vi) through (xii) may be qualified as an opinion only on the laws of the State of New York and the federal law of the United States. You shall have also been advised by special counsel to the Depositor, in one of the foregoing opinions, dated the Closing Date and satisfactory in form and substance to you and counsel for the Underwriters, substantially to the effect that (i) the Registration Statement became effective on a ~~fair summary~~ date certain under the 1933 Act, (ii) to such counsel’s knowledge, the Registration Statement is effective on the Closing Date and (iii) to such counsel’s knowledge, no stop order with respect thereto has been issued by the Commission. In a separate letter addressed only to the Underwriters, special counsel to the Underwriters shall additionally state that, based on conferences and telephone conversations with representatives of the Mortgage Loan Sellers, the Underwriters, the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Trust Advisor, and their respective counsel, and (with limited exception) without having reviewed any of the mortgage notes, mortgages or other documents relating to the Mortgage Loans or made any inquiry of any originator of any Mortgage Loan, nothing has come to such ~~documents~~counsel’s attention that would lead it to believe that (i) the Prospectus (other than any financial, numerical, statistical or quantitative information included therein), at the date of the Prospectus Supplement or at 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, in the light of the circumstances under which they were made, not misleading, (ii) the Time of Sale Information (other than any financial, numerical, statistical or quantitative information included therein, any Mortgage Loan Seller Covered Information, any Master Servicer Covered Information, any Special Servicer Covered Information, any Primary Servicer Covered Information, any Certificate Administrator Covered Information, any Trust Advisor Covered Information and any Trustee Covered Information), at the Time of Sale, contained or contains any untrue statement of a material fact or omitted or omits to states 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 (iii) 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 statements therein not misleading. (

Appears in 2 contracts

Sources: Underwriting Agreement (WFRBS Commercial Mortgage Trust 2012-C6), Underwriting Agreement (WFRBS Commercial Mortgage Trust 2012-C6)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Securities on the First Closing Date and ~~pay for~~ the ~~Offered Notes will~~ Optional Securities on any Optional Closing Date shall be subject to the ~~accuracy of the~~ condition that all representations and warranties on the part of the ~~Depositor herein~~Company and the Selling Stockholders contained herein were true and correct as of the Execution Time and, as of the applicable Closing Date pursuant to Section 3 hereof, are true and correct in all material respects (except to the extent already qualified by materiality of Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects), to the ~~accuracy~~ condition that the Company and the Selling Stockholders shall have performed, in all material respects, all of ~~the statements of officers of the Depositor made pursuant to the provisions hereof~~their respective obligations hereunder, ~~to the performance by the Depositor of its obligations hereunder~~ and to the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus~~ Prospectus, and any ~~supplements thereto~~ supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission ~~in accordance with~~ within the ~~Rules~~ applicable time periods prescribed for such filings by Rule 433; and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted ~~or, to the knowledge of the Depositor~~ or ~~you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law~~threatened. (b) On The Company shall have requested and caused Ropes & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriters on the First Closing Date and the Optional Closing Date, as the case may be, their opinion and negative assurance letter, dated such Closing Date and addressed to the Underwriters, in forms reasonably satisfactory to the Underwriters. (c) The Company shall have requested and caused ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Indiana counsel for the Company, to have furnished to the Underwriters on the First Closing Date and the Optional Closing Date, as the case may be, their opinion, dated such Closing Date and addressed to the Underwriters, in forms reasonably satisfactory to the Underwriters. (d) The Underwriters shall have received on the First Closing Date and the Optional Closing Date, as the case may be, from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion or opinions, dated such Closing Date and addressed to the Underwriters, in forms reasonably satisfactory to the Underwriters. (e) The respective counsel for each of the Selling Stockholders, as indicated in Schedule II hereto, each shall have furnished to the Underwriters on the First Closing Date and the Optional Closing Date, as the case may be, its written opinion, dated such Closing Date, in forms reasonably satisfactory to the Underwriters. (f) The Company shall have furnished to the Underwriters a certificate of the Company, signed by the Chief Executive Officer and the President, and the principal financial or accounting officer of the Company, dated such Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (A) the representations and warranties of the Company in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality or Material Adverse Effect, in which case, such representations and warranties shall be true and correct in all respects) 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; (B) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, ~~you~~ to the Company’s knowledge, threatened; and (C) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, business or properties of the Company and its subsidiaries, 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 Disclosure Package and the Prospectus (exclusive of any supplement thereto). (g) At the Execution Time and at each Closing Date, the Underwriters shall have received a ~~letter~~certificate of the Chief Financial Officer of the Company, dated the Execution Time or such Closing Date, as applicable, reasonably satisfactory to the Representatives, as to the accuracy of certain data contained in the Registration Statement, the Disclosure Package and the Prospectus (h) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Underwriters, at the Execution Time and at each Closing Date, letters, dated respectively as of the Execution Time and as of such Closing Date, ~~of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise~~ in form and substance reasonably satisfactory to ~~you~~ the Underwriters containing statements and ~~your counsel~~information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to the financial statements of the Company and certain financial information of the Company contained in the Registration Statement, the Preliminary Prospectus and the Prospectus. (ci) The Company shall have requested and caused ▇▇▇▇▇ LLP to have furnished to the Underwriters, at the Execution Time and at each Closing Date, letters, dated respectively as of the Execution Time and as of such Closing Date, in form and substance reasonably satisfactory to the Underwriters containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to the financial statements of Skyline Corporation and certain financial information of Skyline Corporation contained in the Registration Statement, the Preliminary Prospectus and the Prospectus (j) Subsequent to the ~~execution and delivery of this Agreement~~ Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment ~~thereto~~thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have ~~occurred~~ been (i) any change or decrease specified in the letter or letters referred to in paragraphs (h) and (i) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~ change, in or affecting ~~particularly~~ the condition (financial or otherwise), earnings, business or properties of the ~~Trust~~Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ~~Depositor~~ordinary course of business, except as set forth in or contemplated in the ~~Company, DaimlerChrysler Corporation~~ Disclosure Package and the Prospectus (exclusive of any amendment or ~~DaimlerChrysler AG~~ supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriters, ~~materially impairs the investment quality of the Offered Notes or makes~~ so material and adverse as to make it impractical or inadvisable to ~~market~~ proceed with the ~~Offered Notes;~~ offering or delivery of the Securities as contemplated by the Registration Statement (iiexclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (k) ~~any suspension or limitation of~~ Prior to such Closing Date, the Company and the Selling Stockholders shall have furnished to the Underwriters such further customary information, certificates and documents as the Underwriters may reasonably request. (l) The Securities shall have been listed and admitted and authorized for trading ~~in securities generally~~ on the New York Stock Exchange, ~~or any setting~~ and satisfactory evidence of ~~minimum prices for trading on~~ such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of actions shall have been provided to the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (dm) ~~You~~ At the Execution Time, the Company shall have ~~received an opinion of in-house counsel~~ furnished to the Underwriters a letter substantially in the ~~office~~ form of Exhibit A hereto from each officer and certain directors of the ~~General Counsel of DCFS~~ Company and the ~~Company,~~ stockholders in each case listed on Schedule IV hereto addressed to ~~you~~ the Underwriters. (n) If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the ~~Indenture Trustee, dated the Closing Date~~ opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to ~~you~~ the Underwriters and ~~your counsel~~counsel for the Underwriters, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and ~~the Purchase Agreement, and had at~~ all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the ~~Company enforceable against~~ Underwriters hereunder may be canceled at, or at any time prior to, such Closing Date by the Underwriters. Notice of such cancellation shall be given to the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party writing or by ~~which either~~ telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ~~them is bound~~▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ~~or result in a violation of or contravene~~ counsel for the ~~terms of any statute~~Underwriters, ~~order or regulation applicable to DCFS or the Company of any court~~at ▇▇▇ ▇▇▇▇▇ ▇▇▇., ~~regulatory body~~▇▇▇ ▇▇▇▇, ~~administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions~~▇▇▇ ▇▇▇▇ ▇▇▇▇▇, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the ~~financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole~~applicable Closing Date. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 2 contracts

Sources: Underwriting Agreement (Skyline Champion Corp), Underwriting Agreement (Skyline Champion Corp)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and MSMCH contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and MSMCH shall have ~~received~~ delivered to you a ~~letter~~certificate of MSMCH, signed by an authorized officer of MSMCH and dated the Closing Date, to the effect that: (i) the representations and warranties of MSMCH 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifMSMCH has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to MSMCH, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of MSMCH, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of MSMCH, 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 MSMCH) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of MSMCH 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 MSMCH) of the articles of association and by-laws of MSMCH, as in effect on the Closing Date, and of the resolutions of MSMCH and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to MSMCH, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the General Master ▇▇▇▇▇▇▇▇, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the heading “Transaction Parties—The Master Servicers—▇▇▇▇▇ Fargo Bank, National Association” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the NCB Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Master Servicer under the heading “Transaction Parties—The Master Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the General Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Special Servicer under the heading “Transaction Parties—The Special Servicers—Rialto Capital Advisors, LLC” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the NCB Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Special Servicer under the heading “Transaction Parties—The Special Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. (q) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (r) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (s) You shall have received from counsel for each Mortgage Loan Seller, each Master Servicer, each Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (t) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (u) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (v) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank 2018-Bnk14)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Underwritten Securities and ~~pay for~~ the ~~Offered 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 ~~Depositor herein~~Fund and the Adviser contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 hereof, to the accuracy of the statements of ~~officers of~~ the ~~Depositor~~ Fund and the Adviser made in any certificates pursuant to the provisions hereof, to the performance by the ~~Depositor~~ Fund or the Adviser of ~~its~~ their obligations hereunder or to the Representatives’ waiver in writing thereof and to the following additional ~~conditions precedent~~conditions: (a) The Prospectus and any supplements thereto ~~shall~~ have been filed ~~with~~ in the ~~Commission in accordance with~~ manner and within the ~~Rules~~ time period required by Rule 497; and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use or order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Depositor~~ Fund, the Adviser or ~~you~~any Underwriter, ~~shall be contemplated~~ threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or ~~by any authority administering any state securities~~ Prospectus or ~~blue sky law~~otherwise) shall have been complied with in all material respects. (b) ~~On or prior~~ The Fund shall have requested and caused ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Fund, to have furnished to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture TrusteeRepresentatives its opinion, dated the Closing Date and ~~satisfactory in form and substance~~ addressed to ~~you and your counsel~~the Representatives, to the effect that: (i) ~~DCFS~~ The Fund has been ~~duly organized~~ formed and is validly existing ~~as a limited liability company~~ in good standing as a voluntary association with transferable shares of beneficial interest commonly referred to as a “Massachusetts business trust” under the Fund’s Declaration of Trust and the laws of the ~~State~~ Commonwealth of ~~Michigan~~ Massachusetts, with full power and authority as a business trust to ~~own~~ own, lease and operate its properties and to conduct its business as ~~presently conducted by it~~described in the Registration Statement, ~~and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement,~~ each Preliminary Prospectus and the ~~Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.~~Prospectus; (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company Fund is duly qualified to do business and is in good ~~standing, and has obtained all necessary licenses and approvals, in~~ standing under the laws of each jurisdiction in which requires such qualification, except where the failure so to qualify ~~or to obtain such licenses or approvals would render any Receivable unenforceable~~ does not have a material adverse effect on the Fund. The Fund has no subsidiaries; (iii) The Fund is duly registered under the 1940 Act as a closed-end, diversified management investment company and the 1940 Act Notification has been duly filed with the Commission; all action has been taken by the ~~Depositor~~Fund as required by the Act, the ~~Owner Trustee~~ 1940 Act, the Exchange Act and the Rules and Regulations in connection with the issuance and consummation and sale of the Securities as contemplated by this Agreement; this Agreement and each of the Fund Agreements complies in all material respects with all applicable provisions of the Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations and the Fund’s trustees and the Fund’s sole shareholder have approved the Management Agreement in accordance with Section 15 of the 1940 Act; and the Fund 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 ~~Indenture Trustee.~~Registration Statement; (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by ~~DCFS.~~the Fund; (v) Each of the Fund Agreements has been duly authorized, executed and delivered by the Fund, and constitutes a valid and legally binding agreement of the Fund, assuming due authorization, execution and delivery thereof by the other parties thereto, enforceable against the Fund in accordance with its terms, subject to the qualification that the enforceability of the Fund’s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles; (vi) Neither the issuance and sale of the Securities, the execution, delivery or performance of this Agreement or any of the Fund Agreements, nor the consummation of the transactions herein or therein contemplated, nor the fulfillment of the terms hereof or thereof or the adoption of the Dividend Reinvestment Plan, result in a breach or violation of, or imposition of any material lien, charge or encumbrance upon any property or assets of the Fund pursuant to, (i) the Declaration of Trust or by-laws of the Fund, (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 Fund is a party or bound or to which its property is subject that is an exhibit to the Registration Statement or that is known by such counsel after reasonable inquiry, or to the best of such counsel’s knowledge after reasonable inquiry and assuming compliance with all applicable state securities and blue sky laws, or (iii) any material statute, law, rule, regulation, judgment, order or decree applicable to the Fund of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Fund or any of its properties; (vii) The Fund’s authorized equity capitalization is as set forth in each Preliminary Prospectus and the Prospectus; the capital stock of the Fund conforms in all material respects to the description thereof contained in the Registration Statement, each Preliminary Prospectus and the Prospectus; all outstanding Common Shares have been duly authorized and validly issued and are fully paid and nonassessable except as described in each Preliminary Prospectus and the Prospectus; the Securities have been duly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be validly issued and fully paid and nonassessable except as described in each Preliminary Prospectus and the Prospectus; the Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the NYSE; the holders of outstanding Common Shares are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in each Preliminary Prospectus and 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 Fund are outstanding; (viii) To the best knowledge of such counsel, after reasonable inquiry, other than as described in the Registration Statement, each Preliminary Prospectus and the Prospectus, 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 Fund or its property required to be disclosed in the Registration Statement, each Preliminary Prospectus and the Prospectus which is not adequately disclosed in the Registration Statement, each Preliminary Prospectus and the Prospectus, and there are no material agreements, contracts, indentures, leases, permits or other instruments required to be described in the Registration Statement, each Preliminary Prospectus or the Prospectus, or to be filed as an exhibit to the Registration Statement, which are not described or filed as required; and the statements included in the Registration Statement, each Preliminary Prospectus and the Prospectus under the headings “Dividend Reinvestment Plan,” “Description of Shares,” “Certain Provisions in the Declaration of Trust and By-laws” and “Tax 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; (ix) No consent, approval, authorization, filing with or order of any court or governmental agency or body is required on behalf of the Fund in connection with the transactions contemplated herein or in the Fund Agreements, except such as have been made or obtained or such as may be required by the Act, the 1940 Act, the Exchange Act, the Advisers Act, the rules and regulations of FINRA and the NYSE and under the 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 each Preliminary Prospectus and the Prospectus; (x) No holders of securities of the Fund have rights to the registration of such securities under the Registration Statement; and (xi) The ~~Purchase~~ Registration Statement has become effective under the Act; any required filings of the Prospectus, and any supplements thereto, pursuant to Rule 497 have been made in the manner and within the time period required by Rule 497; to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement, each Preliminary Prospectus and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the 1940 Act and the Rules and Regulations; and although such counsel has not undertaken, except as otherwise indicated herein, to determine independently, and such counsel does not assume any responsibility for, the accuracy and completeness of the statements in the Registration Statement, each Preliminary Prospectus and the Prospectus, such counsel has participated in the preparation of the Registration Statement, each Preliminary Prospectus and the Prospectus, including review and discussion of the contents thereof, and nothing has come to such counsel’s attention that has caused such counsel to believe that (a) on the Effective Date, 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, (b) each Preliminary Prospectus and the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Prospectus, when taken together as a whole, as of the time of the pricing of the offering of the Underwritten Securities, included 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, and (c) the Prospectus as of its date and on the 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 (in each case, other than the financial statements and the notes thereto and other financial and statistical information contained therein, as to which such counsel need express no opinion). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Illinois or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP or other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters, and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Fund and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date. (c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Managing Director, Assistant Secretary and Associate General Counsel of NAM, or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Managing Director, Assistant Secretary and Assistant General Counsel of NAM, dated the Closing Date and addressed to the Representatives, to the effect that: (i) NAM has been duly incorporated and is validly existing in good standing as a corporation under the laws of the State of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in each Preliminary Prospectus and the Prospectus, and is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to so qualify does not have a material adverse effect on the condition (financial or otherwise), earnings, business or properties of NAM; (ii) NAM is duly registered with the Commission as an investment adviser under the Advisers Act and is not prohibited by the Advisers Act, the 1940 Act, the Advisers Act Rules and Regulations or the 1940 Act Rules and Regulations from acting under the Management Agreement and the ~~Trust~~ Structuring Fee Agreement as contemplated by each Preliminary Prospectus and the Prospectus; (iii) NAM has full corporate power and authority to enter into this Agreement, the Management Agreement and the Structuring Fee Agreement; (iv) This Agreement has been duly authorized, executed and delivered by NAM; (v) The Management Agreement and the Structuring Fee Agreement have been duly authorized, executed and delivered by NAM and each of the ~~Company~~ Management Agreement and ~~are~~ the ~~legal,~~ Structuring Fee Agreement is a valid and legally binding ~~obligations~~ agreement of NAM, assuming due authorization, execution and delivery by the ~~Company~~ other parties thereto, enforceable against ~~the Company~~ NAM in accordance with ~~their terms, except (x)~~ its terms subject to the qualification that the enforceability ~~thereof~~ of NAM’s obligations thereunder may be ~~subject to~~ limited by bankruptcy, insolvency, reorganization, moratorium or and other ~~similar~~ laws ~~now or hereafter in effect~~ relating to or affecting creditors' ’ rights generally and by general equitable principles; (yvi) This Agreement, the ~~remedy of specific performance~~ Management Agreement and ~~injunctive and other forms of equitable relief may be subject to equitable defenses and to~~ the ~~discretion~~ Structuring Fee Agreement comply in all material respects with all applicable provisions of the ~~court before which any proceeding therefor may be brought.~~Act, the 1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act Rules and Regulations; (ixvii) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution ~~and~~ or delivery of this ~~Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement,~~ Agreement or the ~~Sale and Servicing~~ Management Agreement ~~by DCFS, nor~~ or the ~~execution and delivery of the Trust~~ Structuring Fee Agreement ~~and the Purchase Agreement by the Company,~~ nor the consummation of ~~any~~ the transactions ~~contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement~~ herein or ~~the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents")~~therein contemplated, nor the fulfillment of the terms ~~thereof by DCFS~~hereof or thereof, ~~the Company or the Trust, as the case may be, will conflict with, or~~ result in a ~~material breach,~~ breach or violation ~~or acceleration~~ of, or ~~constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or~~ imposition of any ~~indenture~~ material lien, charge or encumbrance upon any property or assets of NAM pursuant to, (i) the Organizational Documents of NAM, (ii) the terms of any material indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other ~~material agreement~~ agreement, obligation, condition, covenant or ~~material~~ instrument to which ~~DCFS or the Company~~ NAM is a party or by bound or to which ~~either of them~~ its property is ~~bound~~subject that is known to such counsel after reasonable inquiry or (iii) any material statute, ~~or result in a violation of or contravene the terms of any statute~~law, rule, regulation, judgment, order or ~~regulation~~ decree that is known to such counsel after reasonable inquiry applicable to ~~DCFS or the Company~~ NAM of any court, regulatory body, administrative ~~agency~~ agency, governmental body, arbitrator or ~~governmental body~~ other authority having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust NAM or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement.properties; (xiviii) ~~To the best knowledge~~ The description of ~~such counsel~~ NAM and ~~except as set forth~~ its business in each Preliminary Prospectus and the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform complies in all material respects with the ~~descriptions thereof contained~~ provisions of the Act, the 1940 Act and the Rules and Regulations; (ix) To the best of such counsel’s knowledge after reasonable inquiry, other than as described or contemplated in each Preliminary Prospectus and the Prospectus, 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 Adviser or its property required to be disclosed in the Registration Statement which is not adequately disclosed in each Preliminary Prospectus (and ~~any supplement thereto).~~the Prospectus, and there are no agreements, contracts, indentures, leases, permits or other instruments required to be described in the Registration Statement, or to be filed as an exhibit to the Registration Statement, which are not described or filed as required; (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.x)

Appears in 1 contract

Sources: Underwriting Agreement (Nuveen Municipal Value Fund 2)

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 Offered Notes will~~ Underwritten Certificates shall be subject to the accuracy of the representations and warranties on the part of the ~~Depositor herein~~Company contained herein as of the date 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 and as of the Closing Date, to the accuracy of the statements of ~~officers of~~ the ~~Depositor~~ Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the ~~Depositor~~ Company of its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Company's knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission ~~or by any authority administering any state securities or blue sky law.~~in accordance with Rule 424 under the 1933 Act; (b) On You shall have received from Baker & McKenzie, counsel for the Underwriters, an opinion, dated the ▇▇▇▇▇ng ▇▇▇▇, ▇▇at, subject to the limitations and qualifications set forth therein, no information has come to the attention of such counsel that causes such counsel to believe that (i) the Prospectus Supplement, as of the date of the Prospectus Supplement or as of the date of such opinion, or (ii) the Prospectus, as of the date of the Prospectus Supplement or as of the date of such opinion, contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided that no statement will be made with respect to financial statements or supporting schedules and statistical and/or accounting information included therein). (c) The Company shall have delivered to you a certificate of the Company, signed by an authorized officer of the Company and dated the Closing Date, to the effect that: (i) the representations and warranties of the Company 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) the Company has 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~~, you~~ ; and FUNB shall have ~~received~~ delivered to you a ~~letter~~certificate of FUNB, signed by an authorized officer of FUNB and dated ~~as of~~ the Closing Date, of ~~KPMG LLP~~the President, ~~certified public accountants, substantially in the form~~ a Senior Vice President or a Vice President of ~~the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent~~ FUNB to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred effect that: (i) ~~any change or any development involving a prospective change~~ the representations and warranties of FUNB in ~~or affecting particularly the business or properties~~ this Agreement are true and correct in all material respects at and as of the ~~Trust,~~ Closing Date and with the ~~Depositor,~~ same effect as if made on the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered NotesClosing Date; and (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifFUNB has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States.Closing Date; (d) You shall have received (i) with respect to FUNB, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the 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, to the effect that: (x) each individual who, as an officer or representative of the Company, 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 the Company) has occurred since the date of the good standing certificate referred to in 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 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 the Closing Date, and of the resolutions of the Company and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an assistant secretary of FUNB, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of FUNB, 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 FUNB) has occurred since the date of the certificate referred to in paragraph 6(d) above which has affected the existence of FUNB 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 FUNB) of the articles of association and by-laws of FUNB, as in effect on the Closing Date, and of the resolutions of FUNB and any required shareholder consent relating to the transactions contemplated in this Agreement; (f) You shall have received from Mayer, Brown & Platt, special counsel for the Company, a favorable opi▇▇▇▇, d▇▇▇▇ the ▇▇▇▇ing Date and satisfactory in form and substance to you and counsel for the Underwriters, to the effect that: (i) The Registration Statement and any amendments thereto have become effective under the 1933 Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and not withdrawn, no proceedings for that purpose have been instituted or threatened and not terminated; and the Registration Statement, the Basic Prospectus, the Prospectus Supplement and each amendment or supplement thereto, as of their respective effective or issue dates (other than the financial statements, schedules and other 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 1933 Act and the rules and regulations thereunder; and such counsel has no reason to believe that (A) the Registration Statement (which, for purposes of this clause, shall be deemed not to include any exhibits filed therewith), or any amendment thereto, at the time it became effective, contained or, as of the date of such opinion, contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that (B) the Prospectus, as amended or supplemented, as of the respective date thereof and at the date hereof, contained or contains any untrue statement of a material fact or omits 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 (other than the financial statements, schedules and other financial and statistical information contained therein as to which such counsel need express no opinion); (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 Registration Statement, as amended, or the Prospectus or to be filed as exhibits to the Registration Statement, as amended, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto; (iii) Assuming this Agreement has been duly authorized, executed and delivered by the Company and FUNB, it constitutes a valid, legal, binding and enforceable agreement of each of the Company and FUNB, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, to general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law and public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purports to provide indemnification from securities law liabilities; (iv) [Reserved] (v) The statements set forth in the Prospectus Supplement under the heading "Description of the Certificates", insofar as such statements purport to summarize material terms of the Underwritten Certificates, are correct in all material respects; (vi) The statements set forth in the Basic Prospectus and the Prospectus Supplement under the headings "Material Federal Income Tax Consequences", "ERISA Considerations" and "Legal Investment", to the extent that they constitute matters of federal law or legal conclusions with respect thereto, are correct in all material respects with respect to those consequences or aspects that are discussed; (vii) [Reserved] (viii) [Reserved] (ix) No consent, approval, authorization or order of any State of New York or federal court or governmental agency or body is required for the consummation by the Company of the transactions contemplated herein, except (A) such as have been obtained under the 1933 Act; (B) such as may be required under the blue sky laws of any jurisdiction in connection with the offer and sale of the Underwritten Certificates by the Underwriters, as to which such counsel need express no opinion; and (C) any recordation of the assignments of the Mortgage Loans pursuant to the Pooling and Servicing Agreement that has not yet been completed; and (x) Assuming compliance with all provisions of the Pooling and Servicing Agreement, (i) REMIC I and REMIC II will each qualify as a real estate mortgage investment conduit (a "REMIC") within the meaning of Sections 860A through 860G (the "REMIC Provisions") of the Internal Revenue Code of 1986, as amended, (the "Code"), (ii) the REMIC I Regular Interests and the Regular Certificates will be "regular interests" (within the meaning of Section 860G(a)(1) of the Code) in REMIC I and REMIC II, respectively, (iii) the Class R-I Certificates and the Class R-II Certificates will be the sole class of "residual interests" (within the meaning of Section 860G(a)(2) of the Code) in REMIC I and REMIC II, respectively, and (iv) the portion of the Trust Fund consisting of Grantor Trust Assets will be treated as a grantor trust for federal income tax purposes and the Class Z-I Certificates and the Class Z-II Certificates will represent undivided beneficial interests in the Grantor Trust Assets. With respect to such opinion, such counsel 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 Pooling and Servicing Agreement; may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Company; may qualify such opinion only as to the federal laws of the United States of America, the laws of the State of New York, the laws of the State of North Carolina and the corporation law of the State of Delaware; and may, to the extent deemed necessary by such counsel, rely on the opinion of ~~in-house~~ counsel in the ~~office~~ regular employ of the ~~General Counsel~~ Company or any affiliate of ~~DCFS~~ the Company or independent North Carolina counsel. Such counsel shall also confirm that the Underwriters may rely, on and as of the ~~Company~~Closing Date, on any opinion or opinions of such counsel submitted to any Rating Agency as if addressed to ~~you~~ the Underwriters and dated the ~~Indenture Trustee~~Closing Date; (g) You shall have received from Sidley Austin Brown & Wood LLP, counsel for Artesia Mortgage Capital Corporat▇▇▇, ▇ ▇▇▇▇▇abl▇ ▇▇inion, dated the Closing Date and satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the effect that the Loan REMIC will qualify as a REMIC under the REMIC Provisions; (h) You shall have received from Timothy F. Danello, counsel for the Company and FUNB, a favorable opin▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇sing Date and satisfactory in form and substance to you and counsel for the Underwriters, to the effect that: (i) ~~DCFS has been duly organized and~~ The Company is ~~validly existing as~~ a ~~limited liability company~~ corporation in good standing under the laws of the State of ~~Michigan with full~~ North Carolina and has the corporate power and authority ~~to own its properties and conduct its business as presently conducted by it, and~~ to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ Neither the ~~laws~~ sale of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the IndentureUnderwritten Certificates, nor the execution ~~and~~ or delivery of or performance under this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any other of the transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, herein will conflict ~~with,~~ with or result in a ~~material breach,~~ breach or violation of any term or ~~acceleration~~ provision of, or constitute a default (or an event which with the passing of time or notification, or both, would constitute a default) under, ~~any term~~ the certificate of incorporation or ~~provision~~ by-laws of ~~the articles of organization or operating agreement of DCFS or~~ the Company, or or, to the knowledge of such counsel, any indenture or other ~~material~~ agreement or ~~material~~ instrument to which ~~DCFS or~~ the Company is a party or by which ~~either of them~~ it is bound, or ~~result in a violation~~ any State of North Carolina or ~~contravene the terms of any statute, order~~ federal statute or regulation applicable to ~~DCFS or~~ the ~~Company~~ Company, 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 ~~either of them~~the Company. (xiii) ~~There~~ FUNB is a national banking association validly existing under the laws of the United States of America and possesses all requisite power and authority to enter into and perform its obligations under this Agreement. (iv) To the best knowledge of such counsel, there are no actions, proceedings or investigations pending ~~or, to the best of such counsel's knowledge after due inquiry,~~ before or threatened ~~before~~ by any court, administrative agency or other tribunal to which the Company is a party or of which any of its properties is the subject (1a) which if determined adversely to the Company would have a material adverse effect on the business or financial condition of the Company, (b) asserting the invalidity of this Agreement or the ~~Trust or any of the Basic Documents~~Underwritten Certificates, (2c) seeking to prevent the sale of the Underwritten Certificates or the consummation by the Company of any of the transactions contemplated by ~~any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of,~~ this Agreement, as the ~~Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement~~case may be, or (4d) ~~that~~ which might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, ~~the Purchase~~ this Agreement or the ~~Trust Agreement~~Underwritten Certificates; (v) This Agreement has been duly authorized, executed and delivered by each of the Company and FUNB. (xivi) To No consent, approval, authorization or order of any federal or state court or governmental agency or body is required for the ~~best knowledge~~ consummation by FUNB or the Company of the transactions contemplated by this Agreement, except those consents, approvals, authorizations or orders that previously have been obtained or as may be required under federal or state securities laws, as to which such counsel ~~and except as set forth~~ expresses no opinion. (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 constitute a default (or an event which with the ~~Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse~~ passing of time or notification, or both, would constitute a ~~default in~~ material default) under, the ~~due performance and observance~~ articles of ~~any term~~association or by-laws of FUNB or, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreementknowledge, ~~the Trust Agreement~~any contract, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing agreement or other ~~action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred~~ instrument to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 1 contract

Sources: Underwriting Agreement (First Union Commercial Mortgage Securities Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Offered Notes will~~ Designated Securities under the Underwriting Agreement shall be ~~subject~~ subject, in the discretion of the Representatives, to the ~~accuracy of the~~ condition that all representations and warranties ~~on the part~~ and other statements of the ~~Depositor herein~~Company in the Underwriting Agreement are, ~~to the accuracy~~ at and as of the ~~statements~~ Time of ~~officers of~~ Delivery, true and correct, the ~~Depositor made pursuant to~~ condition that the ~~provisions hereof, to the performance by the Depositor~~ Company shall have performed all of its obligations hereunder theretofore to be performed, and to the following additional ~~conditions precedent~~conditions: (a) The Canadian Prospectus Supplement in relation to the Designated Securities shall have been filed with the Reviewing Authority under the Shelf Procedures and ~~any supplements thereto~~ the U.S. Prospectus Supplement in relation to the Designated Securities shall have been filed with the Commission pursuant to General Instruction II.K of Form F-9, in each case within the applicable time period prescribed for such filing and in accordance with Section 4(a) hereof; the ~~Rules and Regulations and~~ final term sheet contemplated by Section ~~7(a~~4(a) hereof, and ~~prior~~ any other material required to be filed by the ~~Closing Date,~~ Company pursuant to Rule 433(d) under the Securities Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or,~~ initiated or threatened by the Commission; no order having the effect of preventing or suspending the use of any prospectus (including any Issuer Free Writing Prospectus) relating to the ~~knowledge~~ Designated Securities shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Reviewing Authority; and all requests for additional information on the part of the ~~Depositor or you, shall be contemplated by~~ Reviewing Authority and the Commission ~~or by any authority administering any state securities or blue sky law.~~shall have been complied with to the reasonable satisfaction of the Representatives; (b) ~~On or prior~~ ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to the ~~Closing Date~~Representatives such opinion or opinions, ~~you~~ dated the Time of Delivery, with respect to the Underwriting Agreement, the Indenture, the Designated Securities, the Registration Statement, the U.S. Prospectus and other related matters as the Representatives may reasonably request, and such counsel shall have received ~~a letter~~such papers and information as they may reasonably request to enable them to pass upon such matters; (c) ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Canadian counsel for the Company, shall have furnished to the Representatives their written opinion, dated as the Time of ~~the Closing Date~~Delivery, ~~of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise~~ in form and substance satisfactory to ~~you and your counsel. (c) Subsequent to~~ the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, Representatives to the effect that: (i) ~~DCFS~~ The Company has been duly ~~organized~~ amalgamated and is validly existing as a ~~limited liability company in good standing~~ corporation under the laws of Canada; (ii) The Company’s authorized share capital consists of an unlimited number of Common Shares, an unlimited number of First Preferred Shares, issuable in series, and an unlimited number of Second Preferred Shares, issuable in series, subject to the ~~State~~ limitations on the issuance of ~~Michigan with full~~ First Preferred Shares and Second Preferred Shares as set forth in the articles of the Company; (iii) The Company has the corporate power and ~~authority~~ capacity to ~~own~~ own, lease and operate its properties and conduct its business as ~~presently conducted by it~~described in the Canadian Prospectus and the U.S. Prospectus; (iv) The Company has all requisite corporate power and capacity to execute, ~~and to enter into~~ deliver and perform its obligations under this Agreement, and this Agreement has been duly authorized and, to the ~~Sale~~ extent execution and ~~Servicing Agreement~~delivery are governed by Alberta law, duly executed and delivered by the ~~Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.~~Company; (iiv) The Company has ~~been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full~~ all requisite corporate power and ~~authority~~ capacity to ~~own its properties and conduct its business as presently conducted by it and to enter into~~ execute, deliver and perform its obligations under the ~~Trust Agreement~~ Indenture, and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture ~~Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates~~ has been duly authorized ~~by the Depositor~~ and, ~~when~~ to the ~~Certificates have been~~ extent execution and delivery are governed by Alberta law, duly ~~executed, authenticated~~ executed and delivered by the ~~Owner Trustee in accordance with~~ Company; (vi) The Company has all requisite corporate power and capacity to execute and issue the ~~Trust Agreement~~ Designated Securities and ~~delivered~~to incur the obligations provided for therein, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has Designated Securities have been duly authorized ~~by the Depositor~~ and, ~~when~~ to the ~~Notes have~~ extent delivery and issuance are governed by Alberta law, the global note representing the Designated Securities (the “Global Note”) has been duly executed and delivered by the ~~Owner Trustee and when authenticated by~~ Company and, upon satisfaction of the ~~Indenture Trustee~~ requirements for issuance set forth in ~~accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by~~ the Indenture, ~~subject as to~~ the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement Global Note will have been duly ~~authorized, executed and delivered~~ issued by ~~DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x)~~ the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.Company; (vii) ~~This Agreement has~~ The form of the Global Note and the terms of the Designated Securities have been duly ~~authorized, executed and delivered~~ approved by ~~DCFS.~~the Company; (viii) The ~~Purchase Agreement~~ Company is a “reporting issuer” in the Province of Alberta and is not on the ~~Trust Agreement have been duly authorized, executed and delivered~~ list of defaulting reporting issuers maintained by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.Reviewing Authority; (ix) ~~Neither~~ The Indenture and the ~~transfer~~ issuance of the ~~Receivables~~ Securities thereunder are subject to and comply with the Canada Business Corporations Act except that an exemption order has been obtained under subsection 82(3) of the Canada Business Corporations Act to exempt the Indenture from the ~~Depositor~~ application of Part VIII of the Canada Business Corporations Act, including to permit a non-Canadian trust company to act as trustee under the Indenture; and no registration, filing or recording of the Indenture under the laws of Canada or the Province of Alberta is necessary in order to preserve or protect the validity or enforceability of the Indenture or the Designated Securities issued thereunder; (x) A receipt has been obtained from the Reviewing Authority in respect of the Canadian Prospectus and, to the ~~Trust~~knowledge of such counsel, ~~nor~~ the ~~assignment~~ Reviewing Authority has not revoked such receipt, no order having the effect of ceasing or suspending the distribution of the ~~Owner Trust Estate~~ securities of the Company has been issued by the Reviewing Authority and no proceeding for that purpose has been initiated or threatened by the Reviewing Authority; (xi) The Canadian Prospectus and each document filed with the Reviewing Authority and incorporated by reference in the Canadian Prospectus, and each amendment or supplement thereto, if any, as of their respective effective dates or issue dates (other than the financial statements included or incorporated by reference therein, as to which such counsel need express no opinion), when they were filed with the Reviewing Authority, appear on their face to have been appropriately responsive in all material respects to the ~~Trust~~formal requirements of Alberta Securities Law as interpreted and applied by the Reviewing Authority; (xii) The information in the Canadian Prospectus and the U.S. Prospectus under “Description of Debt Securities”, ~~nor the grant~~ “Description of the ~~security interest~~ Notes” and “Certain Income Tax Considerations – Canada”, and in Part II of the Registration Statement under the heading “Indemnification”, to the extent that it constitutes matters of Canadian federal or Alberta law, summaries of legal matters or legal conclusions in relation to Canadian federal or Alberta law, has been reviewed by such counsel and is correct in all material respects; (xiii) All descriptions of Canadian statutes or regulations and references thereto in the ~~Collateral~~ Canadian Prospectus and the U.S. Prospectus are correct in all material respects and, to the ~~Indenture Trustee pursuant~~ knowledge of such counsel, there are no Canadian statutes or regulations that are required to be described or referred to in the Canadian Prospectus that are not described or referred to therein as required; (xiv) All descriptions in the Canadian Prospectus and the U.S. Prospectus (other than financial statements, including the notes thereto, and financial data) of contracts and other documents which are governed by the laws of the Province of Alberta and to which the Company or its subsidiaries are a party are accurate in all material respects; (xv) To the knowledge of such counsel, there are no franchises, contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Canadian Prospectus or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference therein; (xvi) Other than as disclosed in the Canadian Prospectus or the U.S. Prospectus, to the ~~Indenture~~knowledge of such counsel, ~~nor~~ there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the ~~execution~~ Company or any subsidiary is a party, or to which the property or assets of the Company or any subsidiary is subject, before or brought by any Canadian court or governmental agency or body, which might reasonably be expected to result in an event or circumstance that would have a Material Adverse Effect or which might reasonably be expected to materially adversely affect the properties or assets of the Company and ~~delivery of this Agreement~~its subsidiaries, ~~the Purchase Agreement, the Trust Agreement, the Administration Agreement~~taken as a whole, or the ~~Sale and Servicing Agreement by DCFS, nor the execution and delivery~~ consummation of the ~~Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any~~ transactions contemplated in this ~~Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration~~ Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations ~~under~~hereunder; (xvii) There are no reports or other information that in accordance with the requirements of the Reviewing Authority must be made publicly available in connection with the offering of the Designated Securities that have not been made publicly available as required, and there are no documents required to be filed with the Reviewing Authority in connection with the Canadian Prospectus that have not been filed as required; (xviii) The Company is eligible to file a short form prospectus with the Reviewing Authority with respect to the debt securities described in the Canadian Shelf Prospectus and to use the rules and procedures for the use of a short form shelf prospectus established in Canadian National Instrument 44-102 with respect to such debt securities; (xix) To the knowledge of such counsel, the Company is not in violation of its articles or by-laws or in default in the performance or observance of any material obligation, covenant or condition contained in any of the agreements to be listed in a schedule to the opinion to which the Company is a party; (xx) No filing with, or ~~the validity~~ authorization, approval, consent, license, order, registration, qualification or ~~enforceability~~ decree of, any Canadian federal or Alberta court or governmental authority or agency (other than under the ~~Purchase~~ Canada Business Corporations Act and Alberta Securities Law, which have been made or obtained) is necessary or required in connection with the due authorization, execution and delivery of this Agreement or the ~~Trust~~ due execution, delivery or performance of the Indenture by the Company or for the offering, issuance, sale or delivery of the Designated Securities pursuant to this Agreement.; (xixxi) To The execution, delivery and performance of this Agreement, the ~~best knowledge~~ Indenture and the Designated Securities and the consummation of ~~such counsel~~ the transactions contemplated in this Agreement and ~~except as set forth~~ in the Canadian Prospectus (and ~~any supplement thereto)~~the U.S. Prospectus do not and will not, ~~no default exists and no event has occurred which,~~ whether with ~~notice,~~ or without the giving of notice or lapse of time or both: (1) to the knowledge of such counsel, ~~would~~ conflict with or constitute a breach of, or default under, or result in the ~~due performance and observance~~ creation or imposition of any ~~term~~lien, ~~covenant~~ charge or ~~condition~~ encumbrance upon any property or assets of the Company pursuant to any ~~material agreement~~ of the agreements to be listed in a schedule to the opinion to which ~~the Depositor or~~ the Company is a ~~party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties~~ party; (2) result in any violation of the ~~Depositor and~~ provisions of the articles or by-laws of the Company; (3) result in any violation of the provisions of any applicable Canadian federal or Alberta law, statute, rule or regulation; or (4) to the knowledge of such counsel, violate the terms of any judgment, order, writ or decree of any Canadian federal or Alberta government, government instrumentality or court having jurisdiction over the Company or any of its ~~subsidiaries~~properties, ~~taken as a whole.~~assets, or operations; (~~xii~~xxii) ~~Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties~~ A court of ~~(x) the Company contained~~ competent jurisdiction in the ~~Purchase Agreement and~~ Province of Alberta (an “Alberta Court”) would recognize the ~~Trust Agreement are other than~~ choice of the law of the State of New York (“New York Law”) as ~~stated therein or (y) DCFS contained in~~ the proper law governing this Agreement, the ~~Trust~~ Designated Securities and the Indenture, provided that such choice of law is bona fide (in the sense that it was not made with a view to avoiding the consequences of the laws of any other jurisdiction) and legal, and provided that such New York Law is not contrary to public policy, as that term is applied by an Alberta Court; (xxiii) If this Agreement, the ~~Purchase~~ Designated Securities or the Indenture are sought to be enforced in the Province of Alberta in accordance with the laws applicable thereto as chosen by the parties, namely, New York Law, and an Alberta Court recognizes the choice of New York Law, an Alberta Court would, if specially pleaded and upon appropriate evidence as to such law being adduced, apply the substantive law of New York in the enforcement of such documents as the proper law governing such agreements in accordance with conflicts of law principles applied by Alberta Courts, provided that none of the provisions of this Agreement, the Designated Securities or the Indenture, or of applicable New York Law, is contrary to public policy as that term is applied by an Alberta Court, or otherwise seek to enforce foreign revenue, expropriatory or penal laws; provided, however, that, in matters of procedure, the laws of the Province of Alberta will be applied, including the Limitations Act (Alberta), and an Alberta Court will retain discretion to decline to hear such action if it is contrary to public policy, as that term is applied by an Alberta Court, or if it is not the proper forum to hear such an action, or if concurrent proceedings are being brought elsewhere; (xxiv) Such counsel has no reason to believe that an Alberta Court would avoid enforcement of the Indenture, this Agreement or the ~~Sale~~ Designated Securities on the basis of a reasonable interpretation of public policy, as that term is understood under the laws of the Province of Alberta and ~~Servicing Agreement are other than as stated~~ the federal laws of Canada applicable therein.; (~~xiii~~xxv) The ~~Depositor is~~ laws of the ~~sole owner~~ Province of ~~all right, title~~ Alberta and ~~interest in,~~ the federal laws of Canada applicable therein permit an action to be brought before an Alberta Court on a final and ~~has good and marketable title to~~conclusive in personam judgment for a sum certain of a New York Court respecting the enforcement of the Designated Securities, the ~~Receivables~~ Indenture or this Agreement that is not impeachable as void or voidable or otherwise ineffective under the internal laws of New York Law if: (1) the New York Court tendering such judgment had jurisdiction over the Company, as recognized by an Alberta Court (the appointment by the Company of CT Corporation System as its agent to receive service of process in the United States under the Registration Statement, the Indenture and this Agreement and the ~~other property to be transferred by it~~ provisions in the Indenture and this Agreement whereby the Company has submitted to the ~~Trust. The assignment~~ non-exclusive jurisdiction of a New York Court and waiver of immunities is sufficient for that purpose); (2) such judgment was not obtained by fraud or in a manner contrary to natural justice or other rule of law, whether equitable, legal or statutory and in the case of a judgment obtained by default there has been no manifest error in the granting of such judgment; (3) the enforcement of such judgment would not be inconsistent with public policy as such term is understood under the laws of the ~~Receivables~~Province of Alberta or contrary to any order made by the Attorney General of Canada under the Foreign Extraterritorial Measures Act (Canada) or by the Competition Tribunal under the Competition Act (Canada); (4) the enforcement of such judgment does not constitute, ~~all documents and instruments relating thereto and all proceeds thereof~~ directly or indirectly, the enforcement of foreign revenue, expropriatory or penal laws; (5) no new admissible evidence relevant to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately action is discovered prior to the ~~transfer~~ rendering of ~~the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds~~ judgment by an Alberta Court; (6) performance of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing this Agreement, the ~~Trust Agreement,~~ Designated Securities or the ~~Indenture,~~ Indenture is not illegal under the ~~Purchase Agreement~~ laws of the place of performance; and (7) the action to enforce such judgment is commenced within the applicable limitation periods; (xxvi) The Company is subject to the relevant commercial law and common laws of the Province of Alberta and is generally subject to suit in the Province of Alberta and the ~~Administration Agreement conform in all material respects with the descriptions thereof contained~~ Company does not have any right of immunity from any judicial proceedings in the ~~Prospectus (and any supplement thereto).~~Province of Alberta; (~~xviii~~xxvii) ~~The statements in the Prospectus~~ No goods and services tax imposed under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ federal laws of Canada or the laws of the ~~Depositor May Result~~ Province of Alberta will be collectible by an Underwriter in ~~Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects~~ respect of the ~~Receivables",~~ issuance and sale 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.an Un

Appears in 1 contract

Sources: Underwriting Agreement (Talisman Energy Inc)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; and to (iv) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Depositor’s knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and W▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of W▇▇▇▇ Fargo Bank, signed by an authorized officer of W▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of W▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifW▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to W▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of W▇▇▇▇ Fargo Bank, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of W▇▇▇▇ Fargo Bank, 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 W▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of W▇▇▇▇ Fargo Bank 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 W▇▇▇▇ Fargo Bank) of the articles of association and by-laws of W▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of W▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel in or special counsel for the ~~office of the General Counsel of DCFS and the Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to W▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth in the Preliminary FWP and Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus Supplement under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.captions “Summary”,

Appears in 1 contract

Sources: Underwriting Agreement (WFRBS Commercial Mortgage Trust 2012-C8)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the General Master ▇▇▇▇▇▇▇▇, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the heading “Transaction Parties—The Master Servicers—▇▇▇▇▇ Fargo Bank, National Association” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the General Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Special Servicer under the heading “Transaction Parties—The Special Servicers—KeyBank National Association” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Co-op Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Co-op Master Servicer under the heading “Transaction Parties—The Master Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Co-op Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Co-op Special Servicer under the heading “Transaction Parties—The Special Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. (q) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (r) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (s) You shall have received from counsel for each Mortgage Loan Seller, the General Master Servicer, the General Special Servicer, the Co-op Master Servicer, the Co-op Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (t) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (u) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (v) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank 2020-Bnk28)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and UBS AG contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and UBS AG shall have ~~received~~ delivered to you a ~~letter~~certificate of UBS AG, signed by an authorized officer of UBS AG and dated the Closing Date, to the effect that: (i) the representations and warranties of UBS AG 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifUBS AG has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to UBS AG, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of UBS AG, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of UBS AG, 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 UBS AG) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of UBS AG 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 UBS AG) of the articles of association and by-laws of UBS AG, as in effect on the Closing Date, and of the resolutions of UBS AG and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to UBS AG, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of each Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties— The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer—Rialto Capital Advisors, LLC” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the DreamWorks Campus Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the DreamWorks Campus Special Servicer under the heading “Transaction Parties—The Special Servicer—AEGON USA Realty Advisors, LLC” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Primary Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Primary Servicer under the heading “Transaction Parties—The Primary Servicer—Berkeley Point Capital, LLC” in the Prospectus is true and correct in all material respects. (q) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (r) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (s) You shall have received from the Secretary or an Assistant Secretary of the Third Party Purchaser, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Third Party Purchaser under the heading “Credit Risk Retention—The Third Party Purchaser” in the Prospectus, is true and correct in all material respects. (t) You shall have received from counsel for each Mortgage Loan Seller, the Master Servicer, the Special Servicer, the DreamWorks Campus Special Servicer, the Primary Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee, the Certificate Administrator and the Third Party Purchaser a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (u) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (v) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (w) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (UBS Commercial Mortgage Trust 2018-C9)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the ~~Offered Notes~~ Certificates subject to this Agreement will be subject to the accuracy of the representations and warranties on the part of the Depositor ~~herein~~as of the date hereof and the Specified Delivery Date, to the accuracy of the statements ~~of officers~~ of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor in all material respects of its obligations hereunder and to the following additional conditions precedent: (a) ~~The Prospectus~~ you shall have received a letter from Ernst & Young LLP dated the date hereof and, if requested by you, dated the Specified Delivery Date, each in the forms heretofore agreed to; (b) all actions required to be taken and ~~any supplements thereto~~ all filings required to be made by the Depositor under the 1933 Act prior to the Specified Delivery Date shall have been ~~filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof,~~ duly taken or made; and prior to the ~~Closing~~ Specified Delivery 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~~instituted, or to the knowledge of the Depositor or ~~you~~any Underwriter, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law. (b) On or prior to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel.Commission; (c) ~~Subsequent~~ unless otherwise specified in Schedule I, the Certificates subject to ~~the execution and delivery of~~ this Agreement ~~or, if earlier, the dates as~~ and offered by means of ~~which information is given in~~ the Registration Statement ~~(exclusive of any amendment thereto)~~ shall be rated the ratings specified in Schedule I, and ~~the Prospectus (exclusive of any supplement thereto), there~~ shall not have ~~occurred (i) any change~~ been lowered or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor placed on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed credit watch with ~~completion of the sale of and payment~~ a negative implication for ~~the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States.~~downgrade; (d) ~~You~~ you shall have received an opinion of ~~in-house~~ counsel to the guarantor, Credit Suisse acting through Credit Suisse (USA), Inc. dated the Specified Delivery Date, and in the ~~office~~ form agreed to on or prior to such date; (e) you shall have received opinions of Cadwalader, Wickersham & Taft LLP, special counsel to the ~~General Counsel~~ Depositor and Credit Su▇▇▇▇ ▇▇▇▇▇iti▇▇ (USA) LLC, dated the Specified Delivery Date, in substantially the form agreed to on or prior to such date; (f) you shall have received an opinion of ~~DCFS and~~ special counsel to each Mortgage Loan Seller, dated the ~~Company~~Specified Delivery Date, ~~addressed~~ in the form agreed to on or prior to such date; (g) you ~~and~~ shall have received an opinion of counsel to the ~~Indenture~~ Trustee, dated the ~~Closing Date~~ Specified Delivery Date, which shall be dated the date of the Mortgage Loan Purchase Agreements, in the form agreed to on or prior to such date, together with a reliance letter addressed to the Rating Agencies, the Depositor and ~~satisfactory~~ the Trustee; (h) you shall have received an opinion of counsel of each Master Servicer, dated the Specified Delivery Date, in the form ~~and substance~~ agreed to on or prior to such date; (i) you ~~and your counsel~~shall have received an opinion of counsel of each Special Servicer, dated the Specified Delivery Date, in the form agreed to on or prior to such date (j) you shall have received letters, dated the Specified Delivery Date, from counsel rendering opinions to the Rating Agencies, to the effect ~~that:~~that you may rely upon their opinion to such Rating Agencies, as if such opinion were rendered to you, or such opinions shall be addressed to you; (ik) ~~DCFS has been duly organized and is validly existing as~~ you shall have received a ~~limited liability company in good standing under the laws~~ certificate or certificates signed by such of the ~~State~~ principal executive, financial and accounting officers of ~~Michigan with full power and authority~~ the Depositor as you may request, dated the Specified Delivery Date, in the form agreed to ~~own its properties and conduct its business as presently conducted by it, and~~ on or prior to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.such date; (iil) ~~The Company has been duly organized and is validly existing as~~ you shall have received a ~~limited liability company in good standing under the laws~~ certificate of the ~~State~~ Trustee, signed by one or more duly authorized officers of ~~Michigan with full power and authority~~ the Trustee, dated the Specified Delivery Date, in the form agreed to ~~own its properties and conduct its business as presently conducted by it and~~ on or prior to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments.such date; (~~iii~~m) ~~Each~~ you shall have received a certificate of ~~DCFS and~~ each Master Servicer, signed by one or more duly authorized officers of such Master Servicer, dated the ~~Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals~~Specified Delivery Date, in ~~each jurisdiction in which failure~~ the form agreed to ~~qualify~~ on or prior to ~~obtain~~ such ~~licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee.~~date; (ivn) ~~The direction~~ you shall have received a certificate of each Special Servicer, signed by one or more duly authorized officers of such Special Servicer, dated the Specified Delivery Date, in the form agreed to on or prior to such date; (o) the Mortgage Loan Sellers shall have sold the Mortgage Loans to the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the ~~Indenture, nor the execution and delivery of this Agreement, the~~ Mortgage Loan Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them.Agreements; and (xp) ~~There are no actions~~you shall have received such other documents, ~~proceedings or investigations pending or~~certificates, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution letters and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreementopinions as you may reasonably request. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 1 contract

Sources: Underwriting Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C4)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters ~~to purchase and pay for the Offered Notes will be~~ hereunder are subject ~~to the accuracy of the representations and warranties on the part of the Depositor herein, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof,~~ to the performance by ~~the Depositor~~ each of BCRC and BCI of its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been~~ become effective, or if a post-effective amendment is required to be filed ~~with~~ under the ~~Commission in accordance with~~ Securities Act, such post-effective amendment shall have become effective, not later than 5:00 P.M., New York City time, on the ~~Rules~~ date hereof; and ~~Regulations and Section 7(a) hereof, and~~ on or prior to the Closing ~~Date,~~ Date no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment shall ~~have been issued~~ be in effect, and no proceedings for ~~that~~ such purpose shall be pending before or to BCRC's or BCI's knowledge threatened by the Commission; the Prospectus shall have been ~~instituted or,~~ filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and all requests for additional information shall have been complied with to the ~~knowledge~~ satisfaction of the ~~Depositor or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law.~~Representative; (b) On The representations and warranties of each of BCRC and BCI contained herein are true and correct in all material respects on and as of the Closing Date as if made on and as of the Closing Date and the representations and warranties of each of BCRC and BCI in the Basic Documents will be true and correct in all material respects as of the dates specified in the Basic Documents; and each of BCRC and BCI shall have complied with all agreements and all conditions on its part to be performed or satisfied hereunder and under the Basic Documents at or prior to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel.; (c) Subsequent to the execution and delivery of this Agreement ~~or, if earlier,~~ and prior to the ~~dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto)~~Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by BCRC or BCI by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; (d) Since the date hereof there shall not have been any material adverse change or any development involving a prospective ~~change~~ material adverse change, in or affecting ~~particularly~~ the ~~business~~ general affairs, business, management, financial position, stockholders' equity or ~~properties~~ results of ~~the Trust~~operations of BCRC or BCI, ~~the Depositor, the Company, DaimlerChrysler Corporation~~ otherwise than as set forth or ~~DaimlerChrysler AG which,~~ contemplated in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the UnderwritersProspectus, the effect of ~~any such outbreak, escalation, declaration, calamity, emergency or any change~~ which in the reasonable judgment of the Representative makes it ~~impractical~~ impracticable or inadvisable to proceed with ~~completion~~ the public offering or the delivery of the ~~sale of~~ Certificates on the Closing Date on the terms and ~~payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services~~ in the ~~United States~~manner contemplated in the Prospectus; and the Representative shall have received on and as of the Closing Date a certificate of an officer of BCI knowledgeable with respect to financial performance and the characteristics of the Bombardier Capital Inc. Domestic Inventory Portfolio and the financial performance and the characteristics of the Accounts and the receivables in the Accounts which have been designated to the trust (all such terms as used in the Prospectus) stating that there has been no material adverse change and no development involving a prospective material adverse change in the financial performance and characteristics of the Bombardier Capital Inc. Domestic Inventory Portfolio or in the Accounts or the receivables in the Accounts from April 30, 2000 to the Closing Date. (de) ~~You~~ The Representative shall have received on and as of the Closing Date a certificate of an ~~opinion~~ executive officer of ~~in-house counsel~~ each of BCRC and BCI, in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that (A) the representations and warranties of BCRC and BCI, as applicable, in this Agreement are true and correct in all material respects on and as of the Closing Date, (B) such officer has specific knowledge about the financial matters of BCRC and BCI, as applicable, and that each of BCRC and BCI, 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 prior to the Closing Date, (C) the representations and warranties of BCRC and BCI, as applicable, in the ~~office~~ Basic Documents are true and correct in all material respects as of the dates specified in the Basic Documents, (D) the Registration Statement has become effective, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or to BCRC's or BCI's knowledge, are threatened by the Commission, (E) the Prospectus does not contain any untrue statement of a material fact or omit 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, (F) subsequent to the date of the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of either BCRC or BCI, as applicable, except as set forth in or contemplated in the Registration Statement and the Prospectus or as described in such certificate; and (G) the chief executive offices of BCI and BCRC are located in the State of Vermont; (f) ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President, Legal Affairs and General Counsel of ~~DCFS and~~ BCI, shall have furnished to the ~~Company, addressed to you and the Indenture Trustee~~Underwriters his written opinion, dated the Closing ~~Date and satisfactory~~ Date, in form and substance satisfactory to ~~you and your counsel~~the Representative, to the effect that: (i) ~~DCFS has been~~ each of BCRC and BCI is duly ~~organized~~ qualified to transact business as a foreign corporation and is ~~validly existing as a limited liability company~~ in good standing ~~under~~ in each jurisdiction in the ~~laws~~ United States of America in which it conducts business or owns or leases property so as to make such qualifications necessary, or is not subject to material liability or disability by reason of the ~~State of Michigan with full power and authority~~ failure to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.be so qualified in any jurisdiction; (ii) ~~The Company has been duly organized~~ such counsel does not know of any legal or governmental investigations, actions, suits or proceedings pending or, overtly threatened (by written communication) against or affecting BCRC or BCI or any of their properties, or to which BCRC or BCI is or may be a party or of which any property of BCRC or BCI is the subject (A) that are required to be disclosed in the Registration Statement or the Prospectus, (B) asserting the invalidity of this Agreement or of any of the Basic Documents, (C) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement or any of the Basic Documents, (D) that may adversely affect the federal or state income, excise, franchise or similar tax attributes of the Certificates as described in the Prospectus under the headings "Prospectus Summary - Federal Income Tax Consequences" and ~~is validly existing~~ "Material Federal Income Tax Consequences," (E) that could materially and adversely affect BCRC's or BCI's obligations under this Agreement or any of the Basic Documents or (F) which, if determined adversely to BCRC or BCI, could individually or in the aggregate reasonably be expected to have a material adverse effect on the general affairs, business, prospects, management, financial position, stockholders, equity or results of operations of BCRC or BCI, taken as a ~~limited liability company in good standing under~~ whole, or that would reasonably be expected to materially adversely affect the ~~laws~~ interests of the ~~State~~ holders of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under~~ the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments.Certificates; (iii) ~~Each~~ neither BCRC nor BCI is (A) in violation of ~~DCFS~~ its Certificate of Incorporation or (B) in default in any material respect in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease, pooling and ~~the Company~~ servicing agreement or other agreement or instrument to which BCRC or BCI is ~~duly qualified to do business and is in good standing~~a party or by which BCRC or BCI may be bound, ~~and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify~~ or to ~~obtain~~ which any of its property or assets is subject, other than such ~~licenses~~ defaults as would not, individually or ~~approvals~~ in the aggregate, have a material adverse effect on the business of either BCI or BCRC or would ~~render any Receivable unenforceable by~~ prevent the ~~Depositor,~~ consummation of the ~~Owner Trustee~~ transactions contemplated in this Agreement or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor Basic Documents; neither the execution and delivery by BCRC or BCI of any Basic Document or this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of ~~any~~ the transactions herein and therein contemplated nor the issuance of the Certificates by the Trust or the public offering thereof as contemplated in ~~this Agreement,~~ the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may beProspectus, will conflict ~~with,~~ with or result in a ~~material breach, violation or acceleration~~ breach of, or constitute a default (with notice or passage of time or both) under, or result in the imposition of any ~~term~~ lien, mortgage, pledge, charge, encumbrance, adverse claim or ~~provision~~ other security interest of any other person (collectively, "Liens") upon any of the ~~articles~~ property or assets of ~~organization~~ BCI or ~~operating agreement of DCFS~~ BCRC pursuant to, except as required or ~~the Company~~permitted pursuant thereto, ~~or of~~ any ~~indenture~~ material indenture, mortgage, contract or other ~~material agreement or material~~ instrument to which ~~DCFS~~ BCI or ~~the Company~~ BCRC is a party or by which either of them is bound, or ~~result in a violation of or contravene the terms of any statute, order or regulation applicable~~ to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or which any of ~~the Basic Documents~~their properties is subject, ~~(2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents~~ other than such conflicts, breaches, defaults or ~~the execution and delivery thereof~~Liens which would not, ~~(3) that might materially and adversely affect the performance by DCFS of its obligations under,~~ individually or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the ~~Prospectus (and any supplement thereto)~~aggregate, no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the business of either BCI or BCRC or would prevent the consummation of the transactions contemplated by this Agreement and the Basic Documents; (iv) each of BCRC and BCI possesses all material licenses, certificates, authorities or permits issued by the appropriate state or federal regulatory agencies or bodies necessary to conduct the business now conducted by it and as described in the Prospectus, except to the extent that the failure to have such licenses, certificates, authorities or permits does not have a material adverse effect on the Certificates or the financial condition of BCI or BCRC, and to my knowledge neither BCI nor BCRC has received any notice of proceedings relating to the revocation or modification of any such license, certificate, authority or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the conduct of its business or financial condition~~, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole~~. (~~xii~~g) ~~Nothing has come~~ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for BCI, shall have furnished to ~~such counsel's attention that would lead such counsel~~ the Underwriters their written opinion, dated the Closing Date, in form and substance satisfactory to ~~believe that~~ the ~~representations and warranties of (x)~~ Representative, to the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein.effect that: (~~xiii~~i) BCI is a corporation duly incorporated and validly existing and in good standing under the laws of The ~~Depositor is the sole owner~~ Commonwealth of ~~all right, title and interest in~~Massachusetts, and has the corporate power and authority to own its properties and assets in Massachusetts and to transact the business in which it is engaged or presently proposes to engage in Massachusetts. BCI is in good ~~and marketable title to,~~ standing under the ~~Receivables and the other property to be transferred by it to the Trust. The assignment~~ laws of the ~~Receivables, all documents and instruments relating thereto and all proceeds thereof to~~ Commonwealth of Massachusetts with the ~~Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear~~ office of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of ~~State~~ the Commonwealth of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.Massachusetts;

Appears in 1 contract

Sources: Underwriting Agreement (Bombardier Receivables Master Trust I)

Conditions to the Obligations of the Underwriters. The ~~obligations~~ obligation of the several Underwriters to purchase and pay for the ~~Offered Notes~~ Certificates will be subject to the accuracy of the representations and warranties on the part of the Depositor ~~herein~~herein on the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions precedent: (a) On or prior to the date hereof, the Representative shall have received a letter (a “Procedures Letter”), dated the date of this Agreement, of PricewaterhouseCoopers LLP verifying the accuracy of such financial and statistical data contained in the Preliminary Prospectus and the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming the Procedures Letter and providing additional comfort on such new data. (b) The Prospectus ~~and any supplements thereto~~ shall have been filed ~~with~~ in the ~~Commission in accordance with~~ manner and within the time period required by Rule 424(b) of the Rules and ~~Regulations and Section 7(a)~~ Regulations; the Depositor shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof, ; and prior to 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 Depositor~~ or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law. (b) On or prior to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counselthreatened. (c) Subsequent to the execution and delivery of this ~~Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto)~~Agreement, there shall not have occurred (i) any ~~change~~ change, or any development involving a prospective ~~change~~ change, in or affecting particularly the business or properties of the ~~Trust, the~~ Depositor, the ~~Company~~Master Servicer, ~~DaimlerChrysler Corporation~~ the Administrator or ~~DaimlerChrysler AG~~ JPMorgan Chase & Co. which, in the reasonable judgment of the ~~Underwriters~~Representative, materially impairs the investment quality of the ~~Offered Notes~~ Certificates or makes it impractical ~~or inadvisable~~ to market the ~~Offered Notes~~Certificates; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange~~; (iii)~~ , or any suspension of trading of any securities of ~~DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or~~ the Depositor or JPMorgan Chase & Co. on any exchange or in the over-the-counter ~~market~~market by such exchange or over-the-counter market or by the Commission; (iviii) any banking moratorium declared by federal or New York authorities; or (viv) any outbreak or material escalation of major hostilities ~~in which the United States is involved, any declaration of war by Congress~~ or any other substantial national or international calamity or emergency ~~or any change in the financial markets~~ if, in the reasonable judgment of the ~~Underwriters~~Representative, the effect of any such outbreak, escalation, ~~declaration, calamity,~~ calamity or emergency ~~or any change~~ on the United States financial markets makes it ~~impractical~~ impracticable or inadvisable to proceed with completion of the sale of and any payment for the ~~Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States~~Certificates. (d) ~~You~~ The Representative shall have received opinions, dated the Closing Date and reasonably satisfactory, when taken together, in form and substance to the Representative, of in-house counsel, ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel to the Depositor, and [▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.], special counsel to the Issuer, and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement. (e) The Representative shall have received opinions, dated the Closing Date and reasonably satisfactory, when taken together, in form and substance to the Representative, of in-house counsel, ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel to the Administrator and the Master Servicer and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters regarding the Administrator and the Master Servicer as are customary for the type of transaction contemplated by this Agreement. (f) The Representative shall have received opinions, dated the Closing Date and reasonably satisfactory, when taken together, in form and substance to the Representative, of in-house counsel, ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel to the Subservicer and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters regarding the Subservicer as are customary for the type of transaction contemplated by this Agreement. (g) The Representative shall have received an opinion or opinions of ~~in-house~~ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel to the Depositor, dated the Closing Date and reasonably satisfactory in form and substance to the Representative, with respect to certain matters relating to the treatment of the transfer of the Trust Student Loans from the Sellers to the Depositor and the Depositor to the Issuer and with respect to a grant of a security interest in the ~~office~~ Trust Student Loans to the Indenture Trustee and with respect to the perfection of ~~the General Counsel of DCFS and the Company, addressed to you and~~ the Indenture Trustee’s interest in the Trust Student Loans. (h) The Representative shall have received from Sidley Austin LLP, counsel to the Underwriters, such opinion or opinions, dated the Closing Date and satisfactory in form and substance to ~~you and your counsel~~the Representative, with respect to the ~~effect that:~~validity of the Certificates, the Registration Statement, the Prospectus and other related matters as the Representative may require, and the Depositor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (i) ~~DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws~~ The Representative shall have received an opinion of ~~the State of Michigan with full power and authority~~ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special tax counsel to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, dated the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated Closing Date and ~~delivered by the Owner Trustee~~ reasonably satisfactory in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses form and to the ~~discretion of~~ effect (a) that under current United States federal income tax law the ~~court before which any proceeding therefor may~~ Issuer will not be ~~brought.~~ characterized as an association (~~vii~~or a publicly traded partnership) ~~This Agreement has been duly authorized~~taxable as a corporation for United States federal income tax purposes and (b) that, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to ~~bankruptcy~~the qualifications set forth therein, ~~insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y)~~ the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest statements made in the ~~Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution~~ Preliminary Prospectus and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ caption “U.S. Federal Income Tax Consequences,” insofar as they purport to constitute summaries of ~~the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", to the extent they constitute~~ matters of United States federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the United States federal income tax matters described therein. (j) The Representative shall have received an opinion of [_________], special counsel to the Eligible Lender Trustee and Interim Eligible Lender Trustee, and such other counsel reasonably satisfactory to the Representative and its counsel, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement. (k) The Representative shall have received an opinion of [_________], special counsel to the Owner Trustee, and such other counsel reasonably satisfactory to the Representative and its counsel, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement. (l) The Certificates shall have been ~~reviewed~~ rated “[__]” by S&P, “[__]” by ▇▇▇▇▇’▇ and “[__]” by Fitch. (m) The Representative shall have received a certificate, dated the Closing Date, of an attorney-in-fact, a Vice President or more senior officer of the Depositor in which such ~~counsel~~ person, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Depositor in this Agreement are true and correct in all material ~~respects.~~ respects on and as of the Closing Date, (~~xix~~ii) ~~The statements contained~~ the Depositor has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iii) the representations and warranties of the Depositor in the ~~Prospectus~~ Transfer Agreement and ~~any supplement thereto under~~ the ~~headings "Payments on the Notes", "Payments on the Securities", "Form of Securities~~ Trust Agreement are true and ~~Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar~~ correct as ~~such statements constitute a summary~~ of the ~~Notes,~~ dates specified in the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing~~ Transfer Agreement and the Trust Agreement, ~~constitute~~ (iv) 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, (v) subsequent to the Time of Sale, there has been no material adverse change in the financial position or results of operation of the Depositor’s Student Loan business except as set forth in or contemplated by the Time of Sale Information and the Prospectus or as described in such certificate and (vi) the Prospectus does not contain any untrue statement of a ~~fair summary~~ material fact or omit to state 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. (n) The Representative shall have received a certificate, dated the Closing Date, of each Significant Guarantor (as defined in the Prospectus), to the effect that the information regarding such Significant Guarantor in the 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 light of the circumstances under which they were made, not misleading. (o) The Depositor will furnish, or cause to be furnished, to the Representative such number of conformed copies of such ~~documents~~opinions, certificates, letters and documents referenced in this Section 7 as the Representative reasonably requests.

Appears in 1 contract

Sources: Underwriting Agreement (Collegiate Funding of Delaware LLC)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties on the part of the Depositor herein, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions precedent: (a) The Prospectus and any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to 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 Depositor or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law. (b) On or prior to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible [or electronic] chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 1 contract

Sources: Underwriting Agreement (DaimlerChrysler Financial Services Americas LLC)

Conditions to the Obligations of the Underwriters. The obligations of ~~the Underwriters~~ each Underwriter to purchase ~~and pay for~~ the ~~Offered~~ Notes ~~will~~ shall be subject to the accuracy of the representations and warranties on the part of the Depositor herein, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following ~~additional conditions precedent~~conditions: (a) The ~~Prospectus~~ Registration Statement shall be effective and ~~any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration Statement shall ~~have been issued~~ be in effect on the Closing Date and no proceedings for that purpose shall ~~have been instituted or~~be pending before, ~~to the knowledge of the Depositor~~ or ~~you~~threatened by, ~~shall be contemplated by~~ the Commission ~~or by any authority administering any state securities or blue sky law~~on the Closing Date. (b) PGF and Petrobras shall have filed the Prospectus Supplement with the Commission pursuant to Rule 424(b) within two Business Days of the date hereof and all documents incorporated therein by reference shall have been filed with the Commission prior to the date of such filing, and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act. (c) On or prior to the Closing Date (i) a certified copy of the Original Indenture and (ii) a certified copy of a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith shall have been delivered to the Underwriters. (d) On or prior to the Closing Date, ~~you~~ the following shall have been executed and delivered to the Underwriters, each dated the Closing Date: (i) the Original Indenture, as supplemented by the Twentieth Supplemental Indenture duly executed and delivered by PGF and the Trustee in form and substance reasonably acceptable to such Underwriter; and (ii) the Guaranty duly executed and delivered by Petrobras and the Trustee in form and substance reasonably acceptable to the Underwriters. (e) All of the applicable taxes, fees and other charges due and owing in connection with the execution and delivery of the Transaction Documents shall have been paid. (f) The representations and warranties of the Companies in this Underwriting Agreement and in any of the other Transaction Documents to which the Companies are parties shall be true and correct on the date hereof and as of the Closing Date with the same effect as if made on the Closing Date. (g) The Underwriters shall have received from PricewaterhouseCoopers Auditores Independentes, the independent public accountants for the Companies, (x) on the date hereof, a comfort letter dated the date hereof addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, concerning the financial statements and certain information with respect to the Companies set forth in the Final Offering Document (including the documents incorporated by reference therein) and (y) on the Closing Date, a “bring down” comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters. (h) The Financial Industry Regulatory Authority shall have approved the underwriting arrangements contemplated herein and the Notes shall be eligible for clearance and settlement through DTC. (i) PGF shall have furnished to the Underwriters a certificate of PGF, signed by an authorized officer of PGF acceptable to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters certifying: (i) that the conditions set forth in subsections (a), (b) and (c) of this Section 6 have been satisfied; (ii) that no stop order suspending the effectiveness of the Registration Statement, the Final Offering Document or any amendment thereto has been issued and no proceedings therefor have been initiated or threatened by the Commission; (iii) that the representations and warranties of PGF in this Underwriting Agreement and in any of the other Transaction Documents to which PGF is a party 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, and PGF has 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; (iv) that since the date of the most recent financial statements included in the Final Offering Document (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of PGF, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Offering Document (exclusive of any amendment or supplement thereto); (v) that no Default or Event of Default (or other event that with the passage of time or notice, or both, will ripen into a Default or an Event of Default) under the Notes or the Indenture has occurred and is continuing as of the Closing Date~~, of KPMG LLP, certified public accountants, substantially in~~ ; (vi) as to the ~~form~~ incumbency of the ~~drafts~~ officers or representatives of PGF signing the applicable Transaction Documents and the other documents delivered hereunder and thereunder on behalf of PGF and containing specimen signatures thereof; (vii) that the Memorandum and Articles of Association of PGF have not been amended and is in full force and effect, copies of which shall be attached to ~~which you~~ such certificate; and (viii) that the copy of the Original Indenture attached to the certificate is a true and correct copy thereof. (j) Petrobras shall have ~~previously agreed~~ furnished to the Underwriters a certificate, signed by an authorized officer of Petrobras acceptable to the Underwriters, dated the Closing Date and ~~otherwise~~ in form and substance reasonably satisfactory to ~~you~~ the Underwriters, certifying: (i) that the representations and ~~your counsel~~warranties of Petrobras in this Underwriting Agreement and any of the other Transaction Documents to which it is a party are true and correct in all material respects (unless such representations and warranties are already subject to a materiality qualifier therein, in which case such representations and warranties are true and correct in all respects) on and as of the Closing Date with the same effect as if made on the Closing Date, and Petrobras has 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; (ii) that since the date of the most recent financial statements included in the Final Offering Document (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of Petrobras and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Offering Document (exclusive of any amendment or supplement thereto); (iii) that no Default or Event of Default (or other event that with the passage of time or notice, or both, will ripen into a Default or an Event of Default) has occurred and is continuing as of the Closing Date under the Notes or the Indenture; (iv) as to the incumbency of the officers or representatives of Petrobras signing the applicable Transaction Documents and the other documents delivered hereunder and thereunder on behalf of Petrobras and containing specimen signatures thereof; and (v) that the Estatuto Social of Petrobras has not been amended and is in full force and effect, copies of which shall be attached to such certificate. (ck) The Trustee shall have furnished to the Underwriters a certificate of the Trustee, signed by an authorized officer of the Trustee acceptable to the Underwriters, dated the Closing Date, (i) stating that the Trustee is a banking corporation organized and validly existing under the laws of the State of New York and that its principal office and place of business is not located in The Netherlands or Brazil, (ii) regarding the authority of the Trustee to enter into the Transaction Documents to which it is a party and to execute all documents related thereto and (iii) regarding the incumbency of its officers executing such documents. (l) Subsequent to the ~~execution~~ date hereof and ~~delivery~~ on or prior to the Closing Date, there shall not have been any decrease in the rating of any of the Companies’ debt securities by any “nationally recognized statistical rating organization” (as defined for the purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of such possible change, or any withdrawal of any such rating. (m) Subsequent to the date hereof and on or prior to the closing of the issuance of the Notes, no legislation shall have been enacted by either house of the United States or Brazilian congress or any national legislative body in The Netherlands or by any state legislature, no other action shall have been taken by any Governmental Authority, whether by order, regulation, rule, ruling or otherwise, and no decision shall have been rendered by any court of competent jurisdiction in the United States, Brazil, The Netherlands or any other country, which would have a Material Adverse Effect. (n) On the Closing Date, none of the events listed below shall have occurred and be continuing: (i) a default in the performance or observance by the Companies of any covenant or agreement made by it under this Underwriting Agreement or any other Transaction Document to which they are a party; or (ii) proceedings shall have been commenced against either of the Companies or the Trustee under any Brazilian, United States, Dutch or other bankruptcy act or other foreign, federal or state law relating to bankruptcy or insolvency or laws relating to the relief of debtors, readjustments of indebtedness, reorganizations, arrangements, compositions or extensions, or appointing a receiver or decreeing or ordering the winding up or liquidation of the affairs of either Company or the Trustee or similar proceedings for any relief which includes or might result in, any material modification of the obligations of either Company or the Trustee hereunder or under the applicable Transaction Documents; or (iii) either Company or the Trustee shall have instituted proceedings to be adjudicated insolvent or a bankrupt or shall have consented to the institution of bankruptcy or insolvency proceedings against it or shall have filed a petition or answer or consent seeking reorganization or relief under any Brazilian, United States, Dutch or other bankruptcy act or any other federal or state law relating to bankruptcy or insolvency or shall have consented to the appointment of a receiver or shall have made an assignment for the benefit of creditors or shall have admitted in writing its inability to pay its debts. (o) Subsequent to the date hereof and on or prior to the Closing Date or, if earlier, the dates as of which information is given in the ~~Registration Statement~~ Final Offering Document (exclusive of any amendment ~~thereto) and the Prospectus (exclusive of any~~ or supplement thereto), there shall not have ~~occurred~~ been (i) any material change or decrease in any of the financial line items specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~ change, in or affecting ~~particularly~~ the condition (financial or otherwise), prospects, earnings, business or properties of the ~~Trust~~Companies and Petrobras’s subsidiaries, taken as a whole, whether or not arising from transactions in the ~~Depositor~~ordinary course of business, except as set forth or contemplated in the ~~Company~~Final Offering Document (exclusive of any amendment or supplement thereto) the effect of which, ~~DaimlerChrysler Corporation~~ in any case referred to in clause (i) or ~~DaimlerChrysler AG which~~(ii) above, is, in the judgment of the Underwriters, ~~materially impairs the investment quality of the Offered Notes or makes~~ so material and adverse as to make it impractical or inadvisable to market the ~~Offered Notes;~~ Notes as contemplated by the Final Offering Document (~~ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading~~ exclusive of any ~~securities of DaimlerChrysler AG~~amendment or supplement thereto). (p) The Underwriters shall have received from C▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & H▇▇▇▇▇▇▇ LLP, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the special United States ~~is involved~~counsel to the Companies, ~~any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in~~ an opinion (including a disclosure letter covering the ~~financial markets if~~Final Offering Document), in dated the ~~judgment of~~ Closing Date and addressed to the Underwriters, in form and substance reasonably acceptable to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesUnderwriters. (dq) ~~You~~ The Underwriters shall have received from H▇▇▇▇ Lovells International LLP, Dutch counsel to PGF, an opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably acceptable to the Underwriters. (r) The Underwriters shall have received an opinion (including a disclosure opinion covering the Final Offering Document) of internal counsel to Petrobras, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably acceptable to the Underwriters. (s) The Underwriters shall have received an opinion of ~~in-house~~ P▇▇▇▇▇▇ Coie LLP, external New York counsel in to the ~~office of the General Counsel of DCFS and the Company, addressed to you and the Indenture~~ Trustee, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably acceptable to the Underwriters. (t) The Underwriters shall have received an opinion (including a disclosure opinion covering the Final Offering Document) of P▇▇▇▇▇▇▇ Neto Advogados, special Brazilian counsel for the Underwriters, in form and substance reasonably acceptable to the Underwriters (it being understood that the Companies shall have furnished to such counsel such documents as they request for the purposes of enabling them to pass on such matters). (u) The Underwriters shall have received an opinion (including a disclosure opinion covering the Final Offering Document) from Shearman & Sterling LLP, special United States counsel to the Underwriters, in form and substance reasonably acceptable to the Underwriters, dated the Closing Date and addressed to the Underwriters, and the Companies shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (v) Prior to the Closing Date, the Companies shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request. (w) None of the events contemplated in Section 9 of this Underwriting Agreement shall have occurred. 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 if any of the opinions and certificates mentioned above or elsewhere in this Underwriting Agreement shall not be in all material respects reasonably satisfactory in form and substance to ~~you~~ the Underwriters and ~~your counsel~~counsel for the Underwriters, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Underwriting Agreement and ~~the Purchase Agreement, and had at~~ all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the ~~Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof~~ Underwriters hereunder may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreementcanceled at, or ~~the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of~~ at any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title prior to, the ~~Receivables and~~ Closing Date by the ~~other property~~ Underwriters. Notice of such cancellation shall be given to PGF in writing or by telephone or facsimile confirmed in writing. The documents required to be ~~transferred~~ delivered by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest this Section 6 will be ~~perfected upon~~ delivered at the ~~filing~~ office of ~~the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein~~Shearman & Sterling LLP, at 5▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ~~No filing or other action~~▇▇▇▇▇, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documentsClosing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Petrobras - Petroleo Brasileiro Sa)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the ~~Depositor herein~~Company contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the ~~Depositor~~ Company made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the ~~Depositor~~ Company of its obligations ~~hereunder~~ hereunder; and to (iv) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Company's knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission ~~or by any authority administering any state securities or blue sky law~~in accordance with Rule 424 under the 1933 Act. (b) On You shall have received from Cadwalader, W▇▇▇▇▇▇▇▇m & Taft, counsel for the Underwriters, a favorable opinion, ▇▇▇▇▇ ▇▇▇ Cl▇▇▇▇g 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 and dated the Closing Date, to the effect that: (i) the representations and warranties of the Company 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) the Company has 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~~, you~~ ; and Wachovia shall have ~~received~~ delivered to you a ~~letter~~certificate of Wachovia, signed by an authorized officer of Wachovia and dated ~~as of~~ the Closing Date, of ~~KPMG LLP~~the President, ~~certified public accountants~~a Senior Vice President or a Vice President of Wachovia, ~~substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent~~ to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred effect that: (i) ~~any change or any development involving a prospective change~~ the representations and warranties of Wachovia in ~~or affecting particularly the business or properties~~ this Agreement are true and correct in all material respects at and as of the ~~Trust,~~ Closing Date with the ~~Depositor,~~ same effect as if made on the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered NotesClosing Date; and (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifWachovia has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received ~~an opinion of in-house counsel in the office~~ (i) with respect to Wachovia, a certificate of the ~~General Counsel~~ Office of ~~DCFS~~ the Comptroller of the Currency and (ii) with respect to the 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, ~~addressed~~ in his individual capacity, a certificate, dated the Closing Date, to ~~you~~ the effect that: (x) each individual who, as an officer or representative of the Company, 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 ~~Indenture Trustee~~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 the Company) has occurred since the date of the good standing certificate referred to in 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 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 the Closing Date, and of the resolutions of the Company and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of the Wachovia, in his individual capacity, 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, special counsel for the Company, one or more favor▇▇▇▇ ▇▇▇▇▇ons, ▇▇ted the Closing Date and satisfactory in form and substance to you and ~~your~~ counsel for the Underwriters substantially to the effect that: (i) The statements in the Prospectus under the headings "ERISA Considerations" and "Material Federal Income Tax Consequences", to the extent that they describe certain matters of New York or federal law or legal conclusions with respect thereto, provide a fair and accurate summary of such matters and conclusions; (ii) As described in the Prospectus Supplement and assuming compliance with the provisions of the Pooling and Servicing Agreement, REMIC I and REMIC II will qualify as a REMIC within the meaning of Sections 860A through 860G (the "REMIC Provisions") of the Code, and the 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; (iii) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund created by the Pooling and Servicing Agreement is not required to be registered under the Investment Company Act, as amended; (iv) Each Mortgage Loan Purchase Agreement and the Pooling and Servicing Agreement constitutes the legal, valid and binding agreement of the Company, enforceable against the Company 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; (v) The 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 the Prospectus, as of the 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 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 and on certificates furnished by public officials. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto. 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. In a separate letter addressed only to the Underwriters, Cadwalader, Wickersham & Taft shall additionally state that, based on conferences ▇▇▇ ▇▇▇▇▇hon▇ ▇▇nversations with representatives of Wachovia, Nomura, Artesia, the Underwriters, the Company, the Trustee, the Master Servicer, the Special Servicer and their respective counsel, and (with limited exception) without having reviewed any of the mortgage notes, mortgages or other documents relating to the Mortgage Loans or made any inquiry of any originator of any Mortgage Loan, nothing has come to such counsel's attention that would lead it to believe that (i) the Prospectus (other than: any financial, numerical, statistical or quantitative information included therein; and information relating to the Master Servicer, the Special Servicer or the Trustee contained in or omitted from the Prospectus), at the date of the Prospectus Supplement or at the 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 the light of the circumstances under which they were made, not misleading or (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 to make the statements therein not misleading. (g) You shall have received from Timothy F. Danello, counsel for the Company and Wachovia, a favorable ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇e Closing Date and satisfactory in form and substance to you and counsel for the Underwriters, to the effect that: (i) ~~DCFS has been duly organized and~~ The Company is ~~validly existing as~~ a ~~limited liability company~~ corporation in good standing under the laws of the State of ~~Michigan with full~~ North Carolina and has the corporate power and authority ~~to own its properties and conduct its business as presently conducted by it, and~~ to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ Neither the ~~laws~~ sale of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the CompanyUnderwritten Certificates, nor the consummation of any other of the transactions contemplated in ~~this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement~~ or ~~the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor~~ the fulfillment of the terms ~~thereof by DCFS, the Company or the Trust, as the case may be~~of this Agreement, will conflict ~~with,~~ with or result in a ~~material breach,~~ breach or violation of any term or ~~acceleration~~ provision of, or constitute a default (or an event which with the passing of time or notification, or both, would constitute a default) under, ~~any term or provision of~~ the articles of ~~organization~~ incorporation or ~~operating agreement~~ by-laws of ~~DCFS or~~ the Company, or or, to the knowledge of such counsel, any indenture or other ~~material~~ agreement or ~~material~~ instrument to which ~~DCFS or~~ the Company is a party or by which ~~either of them~~ it is bound, ~~or result in a violation~~ or, to the knowledge of ~~or contravene the terms~~ such counsel, any order of any ~~statute, order~~ State of North Carolina or ~~regulation applicable to DCFS or the Company of any~~ federal court, regulatory body, administrative agency or governmental body having jurisdiction over ~~either of them~~the Company. (xiii) ~~There~~ Wachovia is a national banking association validly existing under the laws of the United States of America and has the corporate power and authority to enter into and perform its obligations under this Agreement. (iv) To the knowledge of such counsel, there are no actions, proceedings or investigations pending ~~or, to the best of such counsel's knowledge after due inquiry,~~ before or threatened ~~before~~ by any court, administrative agency or other tribunal to which the Company is a party or of which any of its properties is the subject (1a) 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 ~~Trust or any of the Basic Documents~~Underwritten Certificates, (2c) seeking to prevent the issuance of the Underwritten Certificates or the consummation by the Company of any of the transactions contemplated by ~~any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of,~~ this Agreement, as the ~~Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement~~case may be, or (4d) ~~that~~ 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) This Agreement has been duly authorized, executed and delivered by each of the ~~Purchase Agreement or the Trust Agreement~~Company and Wachovia. (xivi) To No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the ~~best knowledge~~ 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 ~~counsel~~ real estate filings as may be required in connection with the transfer of the Mortgage Loans and ~~except as set forth~~ 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 constitute a default (or an event which with the ~~Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse~~ passing of time or notification, or both, would constitute a ~~default in~~ default) under, the ~~due performance and observance~~ articles of association or by-laws of Wachovia or, to such counsel's knowledge, any ~~term, covenant~~ indenture or ~~condition of any material~~ other agreement or instrument to which ~~the Depositor or the Company~~ Wachovia is a party or by which ~~either of them~~ it is bound, or to such counsel's knowledge, any order of any federal court, regulatory body, administrative agency or 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 court, administrative agency or other tribunal to which ~~default has~~ Wachovia is 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 ~~financial condition, earnings, prospects,~~ business or ~~properties~~ financial condition of Wachovia, (b) asserting the invalidity of this Agreement, (c) seeking to prevent the consummation by Wachovia of any of the ~~Depositor~~ transactions contemplated by this Agreement or (d) which, if adversely determined, might materially and adversely affect the performance by Wachovia of its ~~subsidiaries~~obligations under, ~~taken as a whole~~or the validity or enforceability of this Agreement. (~~xii~~h) ~~Nothing has come~~ You shall have received from KPMG LLP, certified public accountants, a letter satisfactory in form and substance to ~~such counsel's attention that would lead such~~ you and counsel for the Underwriters, to ~~believe~~ the following effect: (i) they have performed certain specified procedures as a result of which they have determined that the ~~representations~~ 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 ~~warranties~~ "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 (xii) they have compared the ~~Company~~ data contained in the ~~Purchase Agreement and~~ Master Tape referred to in the ~~Trust Agreement are other than as stated therein or~~ immediately preceding clause (y1) ~~DCFS~~ to information contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment an agreed upon sampling of the ~~Receivables, all documents~~ Mortgage Loan files and ~~instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests~~ in ~~the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except~~ such other sources as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.shall

Appears in 1 contract

Sources: Underwriting Agreement (Wachovia Commercial Mort Pass Thru Cert Ser 2002-C2)

Conditions to the Obligations of the Underwriters. The ~~obligations~~ obligation of the Underwriters hereunder to purchase ~~and pay for~~ the ~~Offered Notes will~~ Underwritten Certificates shall be subject to the accuracy of the representations and warranties on the part of the ~~Depositor herein~~Company and Prudential contained herein as of the date 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 and as of the Closing Date, to the accuracy of the statements of ~~officers of~~ the ~~Depositor~~ Company and Prudential made in any certificates delivered pursuant to the provisions hereof, to the performance by the ~~Depositor~~ Company and Prudential of ~~its~~ their obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, 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 ~~knowledge of~~ Company's knowledge, threatened and not terminated; and the ~~Depositor~~ Prospectus Supplement shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission ~~or by any authority administering any state securities or blue sky law.~~in accordance with Rule 424 under the 1933 Act; (b) On You shall have received from Cadwalader, Wickersham & Taft, counsel for the Underwriters, a favorable opinion, ▇▇▇▇▇ ▇▇▇ Cl▇▇▇▇g Date, as to such matters regarding the Underwritten Certificates as you may reasonably request; (i) The Company shall have delivered to you a certificate of the Company, signed by an authorized officer of the Company and dated the Closing Date, to the effect that: (1) the representations and warranties of the Company 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 (2) the Company has 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~~, you~~ ; and (ii) Prudential shall have ~~received~~ delivered to you a ~~letter~~certificate of Prudential, signed by an authorized officer of Prudential and dated ~~as of~~ the Closing Date, of ~~KPMG LLP~~the President, ~~certified public accountants, substantially in the form~~ a Senior Vice President or a Vice President of ~~the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent~~ Prudential to the ~~execution~~ effect that: (1) the representations and ~~delivery~~ warranties of Prudential in this Agreement ~~or, if earlier, the dates as of which information is given~~ are true and correct in ~~the Registration Statement~~ all material respects; and (~~exclusive of any amendment thereto~~2) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG whichPrudential has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters, materially impairs~~ conditions on its part to be performed or satisfied hereunder at or prior to the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States.Closing Date; (d) You shall have received (i) with respect to the Company, a good standing certificate of the jurisdiction of its organization and (ii) with respect to Prudential a good standing certificate from the jurisdiction of its organization, each dated not earlier than 10 days prior to the Closing Date; (i) You shall have received from the Secretary or an ~~opinion~~ assistant secretary of the Company, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Company, 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 the Company) has occurred since the date of the good standing certificate referred to in Section 6(d)(i) above which has affected the good standing of the Company under the laws of the jurisdiction of its organization. Such 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 any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an assistant secretary of Prudential, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of Prudential, 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 Prudential) has occurred since the date of the good standing certificate referred to in Section 6(d)(ii) above which has affected the existence of Prudential under the laws of the jurisdiction of its organization. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an assistant secretary of Prudential) of the organizational documents of Prudential, as in effect on the Closing Date, and of the resolutions of Prudential and any required shareholder consent relating to the transactions contemplated in this Agreement; (f) You shall have received from Sidley & Austin, special counsel for the Company, and from in-house counsel for the Company and in-house counsel for Prudential, various favorable opinions, each dated the Closing Date and reasonably satisfactory in form and substance to you and counsel for the ~~office of the General Counsel of DCFS and~~ Underwriters, which opinions shall cover such matters regarding the Company, Prudential, the Underwritten Certificates, this Agreement and the Pooling and Servicing Agreement as you may reasonably request. Such counsel shall also confirm that the Underwriters may rely, on and as of the Closing Date, on any opinion or opinions of such counsel submitted to any Rating Agency as if addressed to ~~you~~ the Underwriters and dated the ~~Indenture Trustee~~Closing Date. (g) [Reserved] (h) You shall have received from PricewaterhouseCoopers LLP, certified public accountants, a letter dated the Closing Date and satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS~~ they have performed certain specified procedures as a result of which they have determined that the information of an accounting, financial or statistical nature to be set forth in the Prospectus Supplement under the captions "Summary of the Prospectus Supplement," "Description of the Mortgage Pool" and "Yield and Maturity Considerations" (or similar captions thereto) and on certain annexes and schedules to the Prospectus Supplement agrees with the data sheet or computer tape prepared by or on behalf of the Mortgage Loan Seller, unless non-material deviations 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 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 non-material deviations are otherwise noted in such letter; (i) You shall have received written confirmation from the Rating Agencies that the ratings described on Schedule I have been assigned to the Underwritten Certificates on or before the Closing Date and that, as of the Closing Date, no notice has been ~~duly organized~~ given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings; (j) You shall have received true sale opinions in connection with the transfer of the Mortgage Loans, from the Mortgage Loan Seller to the Company, and in turn from the Company to the Trustee, dated the Closing Date, in form and substance reasonably satisfactory to you and counsel for the Underwriters; (k) The Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement and other agreements contemplated by those agreements to be in effect on the Closing Date shall have been entered into in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (l) You shall have received from the Secretary or an assistant secretary of the Trustee, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading "The Pooling and Servicing Agreement--The Initial Trustee" (or similar headings thereto) in the Prospectus Supplement is ~~validly existing~~ true and correct in all material respects; (m) You shall have received from the Secretary or an assistant secretary of the Master Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading "The Pooling and Servicing Agreement--The Initial Master Servicer and the RREEF Special Servicer" (or similar headings thereto) in the Prospectus Supplement, is true and correct in all material respects; (n) You shall have received from the Secretary or an assistant secretary of the Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading "The Pooling and Servicing Agreement--The Initial Special Servicer" (or similar headings thereto) in the Prospectus Supplement, is true and correct in all material respects; and (o) You shall have received, with respect to each of the Master Servicer, the RREEF Special 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 by such party; the enforceability of the Pooling and Servicing Agreement against such party, subject to such limitations as ~~a limited liability company in good standing under~~ are reasonably acceptable to you and counsel for the Underwriters, and such other matters as you and 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 parties to the Pooling and Servicing Agreement and on certificates furnished by public officials and, further, may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the 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 ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~New York, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the ~~State~~ jurisdiction of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under~~ organization for the ~~Trust Agreement~~ party on behalf of which such opinion is being rendered and the ~~Purchase Agreement, and had at all times, and now has,~~ federal law of the ~~power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments~~United States. (~~iii~~p) ~~Each of DCFS~~ All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be reasonably satisfactory in form and substance to you and counsel for the ~~Company is duly qualified to do business and is in good standing~~Underwriters, and ~~has obtained all necessary licenses~~ you and ~~approvals~~such counsel shall have received such additional information, ~~in each jurisdiction in which failure to qualify~~ legal opinions, certificates and documents as you or ~~to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee~~they may have reasonably requested. (ivq) The ~~direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates~~ Mortgage Loan Seller and Prudential shall have ~~been duly executed, authenticated and delivered by the Owner Trustee in accordance~~ entered into an indemnification agreement with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and ~~are~~ the ~~legal, valid and binding obligations~~ Underwriters providing for indemnification of the Company ~~enforceable against~~ and the ~~Company~~ Underwriters for any loss, liability, claim, damage or expense they may incur in ~~accordance~~ connection with ~~their terms~~the offering and sale of the Underwritten Certificates arising out of material misstatements contained in and material omissions from the Preliminary Prospectus Supplement or Prospectus Supplement, ~~except (x)~~ and if approved by the ~~enforceability thereof may be subject to bankruptcy~~Mortgage Loan Seller, ~~insolvency~~Computational Materials, ~~reorganization~~ABS Term Sheets, ~~moratorium~~ or ~~other similar laws now~~ marketing materials used in "road shows," resulting from any breach of certain representations or ~~hereafter~~ warranties made by the Mortgage Loan Seller or any error in ~~effect relating to creditors' rights and (y)~~ the ~~remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and~~ Mortgage Loan Seller Information provided to the ~~discretion~~ Underwriters, in form and substance reasonably satisfactory to you and counsel for the Underwriters. If any of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest conditions specified in ~~the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution~~ this Section 6 shall not have been fulfilled in all material respects when and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated as provided in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or if the Company is ~~a party or by which either of them is bound, or result~~ in ~~a violation of or contravene the terms~~ breach of any ~~statute, order~~ covenants or ~~regulation applicable to DCFS~~ agreements contained herein or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or if any of the ~~Basic Documents, (2) seeking~~ opinions and certificates referred to ~~prevent the consummation of any of the transactions contemplated by any of the Basic Documents~~ above or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained elsewhere in this ~~Agreement, the Trust Agreement, the Purchase~~ Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to shall not be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects ~~with~~ reasonably satisfactory in form and substance to you and counsel for the ~~descriptions thereof contained in the Prospectus (~~Underwriters, this Agreement and ~~any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ all obligations of the ~~Depositor May Result in Delays~~Underwriters hereunder may be canceled at, ~~Reductions~~ or ~~Loss~~ at any time prior to, the Closing Date by you. Notice of ~~Payments to Securityholders" and "Certain Legal Aspects of the Receivables",~~ such cancellation shall be given to the ~~extent they constitute matters of law~~ Company in writing, or ~~legal conclusions with respect thereto, have been reviewed~~ by ~~such counsel and are correct~~ telephone or telegraph confirmed in ~~all material respects~~writing. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 1 contract

Sources: Underwriting Agreement (Prudential Securities Sec Fin Corp Mor Pas THR Cer 2001-C1)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Affiliated Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Affiliated Servicer under the heading “Transaction Parties—Affiliated Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (r) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Third Party Purchaser, the Master Servicer, the Special Servicer, the Affiliated Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (u) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2018-C45)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and Barclays Holdings contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and (a) in the case of Barclays, Barclays Holdings to the same extent as Barclays, (b) in the case of SGFC, Société Générale to the same extent as SGFC and (c) in the case of BSPRTCF, FBSPRT to the same extent as BSPRTCF) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and Barclays Holdings shall have ~~received~~ delivered to you a ~~letter~~certificate of Barclays Holdings, signed by an authorized officer of Barclays Holdings and dated the Closing Date, to the effect that: (i) the representations and warranties of Barclays Holdings 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifBarclays Holdings has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received with respect to Barclays Holdings and the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of formation and limited liability company agreement of the Depositor, as in effect on the Closing Date, and (ii) you shall have received from the Secretary or an Assistant Secretary of Barclays Holdings, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (A) each individual who, as an officer or representative of Barclays Holdings, 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 (B) no event (including, without limitation, any act or omission on the part of Barclays Holdings) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of Barclays Holdings under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of Barclays Holdings) of the certificate of incorporation, by-laws or similar organizational documents of Barclays Holdings, as in effect on the Closing Date, and of the resolutions of Barclays Holdings. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to Barclays Holdings, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes ▇-▇, ▇-▇ and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Primary Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Primary Servicer under the heading “Transaction Parties—The Primary Servicer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Affiliated Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Affiliated Special Servicer under the heading “Transaction Parties—The Affiliated Special Servicer” in the Prospectus is true and correct in all material respects. (q) You shall have received from an officer of the Third Party Purchaser, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Third Party Purchaser under the heading “Credit Risk Retention—The Third Party Purchaser” in the Prospectus is true and correct in all material respects. (r) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (s) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (t) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Third Party Purchaser, the Master Servicer, the Special Servicer, the Primary Servicer, the Affiliated Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator, a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (u) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (v) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (w) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (BBCMS Mortgage Trust 2022-C18)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and BANA contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and BANA shall have ~~received~~ delivered to you a ~~letter~~certificate of BANA, signed by an authorized officer of BANA and dated the Closing Date, to the effect that: (i) the representations and warranties of BANA 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifBANA has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to BANA, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor, a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of BANA, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of BANA, 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 BANA) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of BANA 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 BANA) of the articles of association and by-laws of BANA, as in effect on the Closing Date, and of the resolutions of BANA and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to BANA, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes ▇-▇, ▇-▇ and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the General Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the heading “Transaction Parties—The Master Servicers—▇▇▇▇▇ Fargo Bank, National Association” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the General Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Special Servicer under the heading “Transaction Parties—The Special Servicers—Rialto Capital Advisors, LLC” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the NCB Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Master Servicer under the heading “Transaction Parties—The Master Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the NCB Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Special Servicer under the heading “Transaction Parties—The Special Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. (q) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (r) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (s) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (t) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (u) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (v) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank 2021-Bnk36)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Offered Notes will~~ Normal PPS shall be subject to the accuracy of the representations and warranties on the part of each of the ~~Depositor herein~~Guarantor and the Trust contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of ~~officers of~~ the ~~Depositor~~ Guarantor and the Trust made in any certificates pursuant to the provisions hereof, to the performance by each of the ~~Depositor~~ Guarantor and the Trust of its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The Prospectus ~~and any supplements thereto~~ shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the ~~Rules and Regulations and~~ final term sheet contemplated by Section ~~7(a~~5(A)(a) hereof, and ~~prior~~ any other material required to be filed by the ~~Closing Date~~Guarantor or the Trust pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or, to the knowledge of the Depositor~~ initiated or ~~you, shall be contemplated~~ threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by ~~any authority administering any state securities or blue sky law~~the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction. (b) ~~On or prior~~ King & Spalding LLP, counsel for the Guarantor, shall have furnished to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received Underwriters an ~~opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee~~opinion, dated the Closing ~~Date and satisfactory in form and substance to you and your counsel~~Date, to the effect that: (i) ~~DCFS~~ This Agreement has been duly ~~organized~~ authorized, executed and delivered by the Guarantor and the Trust; (ii) Each of the Declaration of Trust, the Indenture, the Guarantee Agreement, the Stock Purchase Contract Agreement and the Collateral Agreement has been duly and validly authorized, executed and delivered by the Guarantor and constitutes a valid and binding agreement of the Guarantor, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and each of the Declaration of Trust, the Indenture and the Guarantee Agreement has been duly qualified under the Trust Indenture Act; (iii) The issuance, execution and delivery of the Junior Subordinated Notes have been duly and validly authorized by the Guarantor and, when authenticated by the Issuer Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Guarantor, entitled to the benefits of the Indenture and enforceable against the Guarantor in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; (iv) The Guarantee has been duly and validly authorized by the Guarantor and constitutes a valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; (v) The issuance by the Guarantor of Preferred Stock pursuant to the Stock Purchase Contract Agreement and the Guarantor’s certificate of incorporation, as amended, has been duly authorized and, when certificates evidencing the shares of Preferred Stock have been executed by the Guarantor and authenticated by the Guarantor’s transfer agent in the manner provided in the Stock Purchase Contract Agreement and delivered on the Stock Purchase Date, such shares will be validly issued, fully paid and non-assessable; (vi) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Description of the PPS,” “Description of the Stock Purchase Contracts,” “Certain Other Provisions of the Stock Purchase Contract Agreement and the Collateral Agreement,” “Description of the Junior Subordinated Notes,” “Description of the Guarantee,” “Relationship among PPS, Junior Subordinated Notes, Stock Purchase Contracts and Guarantee” and “Description of the Preferred Stock,” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; (vii) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Certain U.S. Federal Income Tax Consequences” and “ERISA Considerations,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974 and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects; and (viii) The provisions of the Collateral Agreement are effective to create in favor of the Collateral Agent for the benefit of the Guarantor a valid security interest under the UCC in all Pledged Securities Entitlements in which a security interest may be created under Article 9 of the UCC (the “Article 9 Security Interest”); and the provisions of the Collateral Agreement are effective under the UCC and the Federal Book-Entry Regulations to perfect the Article 9 Security Interest in the Collateral Agent for the benefit of the Guarantor in the Pledged Security Entitlements. (c) The Guarantor shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Guarantor, to the effect that: (i) The Guarantor has been duly incorporated and is validly existing as a ~~limited liability company~~ corporation in good standing under the laws of the State of ~~Michigan~~ Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with ~~full~~ power and authority to own its properties and conduct its business as ~~presently conducted by it, and to enter into and perform its obligations under this Agreement,~~ described in the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.Prospectus; (ii) The ~~Company~~ Guarantor has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Guarantor have been duly and validly authorized and issued and are fully paid and non-assessable; (iii) The Guarantor has been duly ~~organized~~ qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; (iv) SunTrust Bank has been duly incorporated and is validly existing as a ~~limited liability company~~ corporation in good standing under the laws of the State of ~~Michigan~~ Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Guarantor, free and clear of all liens, encumbrances, equities or claims; (v) 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 Guarantor or any of its subsidiaries or the Trust is a party or of which any property of the Guarantor or any of its subsidiaries or the Trust is the subject which is reasonably likely to be adversely determined against the Guarantor or any of its subsidiaries or the Trust and, if determined adversely to the Guarantor or any of its subsidiaries or the Trust, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Guarantor and its subsidiaries, taken as a whole or of the Trust; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (vi) The execution and delivery of this Agreement, the Declaration of Trust, the Indenture, the Guarantee Agreement, the Stock Purchase Contract Agreement and the Collateral Agreement, the issuance and sale of the Junior Subordinated Notes, the Guarantee, the Normal PPS and the Trust Common Securities and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with ~~full~~ 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 known to such counsel to which the Guarantor, the Trust or SunTrust Bank is a party or by which the Guarantor, the Trust or SunTrust Bank is bound or to which any of the property or assets of the Guarantor, the Trust or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of the Trust or SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Guarantor, the Trust or SunTrust Bank or any of their properties; (vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Normal PPS, the Junior Subordinated Notes or the Guarantee or the consummation by the Company and the Trust of the transactions contemplated by the Underwriting Agreement, except such as have been obtained under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Normal PPS by the Underwriters; (viii) Neither the Trust nor the Guarantor is and, after giving effect to the offering and sale of the Normal PPS and the application of the proceeds thereof, neither will be an “investment company”, as such term is defined in the Investment Company Act; (ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and the Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and (x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that: (i) the Registration Statement, as of its effective date, contained an 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; (ii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted 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; (iii) the Prospectus, as of its date and as of the date hereof, contained or contains an 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 (iv) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (i), (ii), (iii) and (iv) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to the Statement of Eligibility on Form T-1. (d) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to the Guarantor and the Trust, shall have furnished to the Underwriters an opinion, dated the Closing Date, to the effect that: (i) The Trust has been duly created and is validly existing and in good standing under the Delaware Statutory Trust Act and all filings required under the laws of the State of Delaware with respect to the creation and valid existence of the Trust as a statutory trust have been made; (ii) Under the Delaware Statutory Trust Act and the Declaration of Trust, the Trust has the trust power and authority to own its ~~properties~~ property and conduct its ~~business~~ business, all as ~~presently conducted by it and to enter into and perform its obligations under~~ described in the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments.Prospectus; (iii) ~~Each~~ The provisions of ~~DCFS~~ the Declaration of Trust, including the terms of the PPS, are permitted under the Delaware Statutory Trust Act and the ~~Company is duly qualified to do business~~ Declaration of Trust constitutes a valid and ~~is in good standing~~binding obligation of the Guarantor and the Trustees, enforceable against the Guarantor and ~~has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by~~ the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee Trustees in accordance with ~~the Trust Agreement and delivered~~its terms, ~~the Certificates will be duly issued and entitled~~ subject, as to enforcement, to the ~~benefits and security afforded by~~ effect upon the Declaration of Trust ~~Agreement, subject as to the enforcement~~ of ~~remedies~~ (xi) ~~to applicable~~ bankruptcy, insolvency, moratorium, receivership, reorganization, ~~moratorium~~ liquidation, fraudulent conveyance or transfer and other similar laws relating to or affecting ~~creditors'~~ the rights ~~generally~~ and remedies of creditors generally, (yii) ~~to general~~ principles of ~~equity~~ equity, including applicable law relating to fiduciary duties (regardless of whether ~~the enforcement of such remedies is~~ considered and applied in a proceeding in equity or at law)., and (iii) applicable public policy on the enforceability of provisions relating to indemnification or contribution; (iv) Under the Delaware Statutory Trust Act and the Declaration of Trust, the Trust has the trust power and authority to (x) execute and deliver this Agreement and the Other Trust Transaction Agreement and to perform its obligations under this Agreement and the Other Trust Transaction Agreements, and (y) issue and perform its obligations under the PPS and the Trust Common Securities; (v) ~~The direction~~ Under the Delaware Statutory Trust Act and the Declaration of Trust, (A) the execution and delivery by the ~~Depositor to~~ Trust of this Agreement and the ~~Indenture Trustee to authenticate~~ Other Trust Transaction Agreement and the ~~Notes has~~ performance by the Trust of its obligations hereunder and thereunder have been duly authorized by all necessary trust action on the ~~Depositor and, when~~ part of the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally Trust; and (yB) the Guarantor is authorized to ~~general principles~~ execute and deliver this Agreement on behalf of ~~equity (regardless of whether~~ the ~~enforcement of such remedies is considered in a proceeding in equity or at law).~~Trust (vi) ~~The Purchase Agreement~~Under the Delaware Statutory Trust Act, the form of certificates attached to the Declaration of Trust ~~Agreement~~to represent the Normal PPS, Stripped PPS and Capital PPS are appropriate forms of certificates to evidence ownership of the Normal PPS, the ~~Sale and Servicing Agreement~~ Stripped PPS and the ~~Administration Agreement have been duly authorized~~Capital PPS, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.respect

Appears in 1 contract

Sources: Underwriting Agreement (Suntrust Banks Inc)

Conditions to the Obligations of the Underwriters. The ~~obligations~~ obligation of the several Underwriters to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties on the part of the Depositor ~~herein~~herein on the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions precedent: (a) On or prior to the date hereof, the Representative shall have received a letter (a “Procedures Letter”), dated the date of this Agreement, of PricewaterhouseCoopers LLP verifying the accuracy of such financial and statistical data contained in the Preliminary Disclosure Package and the Prospectus as the Representative shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Representative shall have received a letter dated the Closing Date confirming the Procedures Letter and providing additional comfort on such new data. (b) The Prospectus ~~and any supplements thereto~~ shall have been filed ~~with~~ in the ~~Commission in accordance with~~ manner and within the time period required by Rule 424(b) of the Rules and ~~Regulations and Section 7(a)~~ Regulations; the Depositor shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof, ; and prior to 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 Depositor~~ or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law. (b) On or prior to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counselthreatened. (c) Subsequent to the execution and delivery of this ~~Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto)~~Agreement, there shall not have occurred (i) any ~~change~~ change, or any development involving a prospective ~~change~~ change, in or affecting particularly the business or properties of the ~~Trust, the~~ Depositor, the ~~Company~~Master Servicer, ~~DaimlerChrysler Corporation~~ the Administrator or ~~DaimlerChrysler AG~~ JPMorgan Chase & Co. which, in the reasonable judgment of the ~~Underwriters~~Representative, materially impairs the investment quality of the Offered Notes or makes it impractical ~~or inadvisable~~ to market the Offered Notes; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange~~; (iii)~~ , or any suspension of trading of any securities of ~~DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or~~ the Depositor or JPMorgan Chase & Co. on any exchange or in the over-the-counter ~~market~~market by such exchange or over-the-counter market or by the Commission; (iviii) any banking moratorium declared by federal or New York authorities; or (viv) any outbreak or material escalation of major hostilities ~~in which the United States is involved, any declaration of war by Congress~~ or any other substantial national or international calamity or emergency ~~or any change in the financial markets~~ if, in the reasonable judgment of the ~~Underwriters~~Representative, the effect of any such outbreak, escalation, ~~declaration, calamity,~~ calamity or emergency ~~or any change~~ on the United States financial markets makes it ~~impractical~~ impracticable or inadvisable to proceed with completion of the sale of and any payment for the Offered ~~Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States~~Notes. (d) ~~You~~ The Representative shall have received opinions, dated the Closing Date and reasonably satisfactory, when taken together, in form and substance to the Representative, of in-house counsel, ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel to the Depositor, and ▇▇▇▇▇▇ & Whitney (Delaware) LLP, special counsel to the Issuer, and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement. (e) The Representative shall have received opinions, dated the Closing Date and reasonably satisfactory, when taken together, in form and substance to the Representative, of in-house counsel, ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel to the Administrator and the Master Servicer and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters regarding the Administrator and the Master Servicer as are customary for the type of transaction contemplated by this Agreement. (f) The Representative shall have received opinions, dated the Closing Date and reasonably satisfactory, when taken together, in form and substance to the Representative, of in-house counsel, ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel to the Subservicer and such other counsel otherwise reasonably acceptable to the Representative, with respect to such matters regarding the Subservicer as are customary for the type of transaction contemplated by this Agreement. (g) The Representative shall have received an opinion or opinions of ~~in-house~~ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel to the Depositor, dated the Closing Date and reasonably satisfactory in form and substance to the Representative, with respect to certain matters relating to the treatment of the transfer of the Trust Student Loans from the Sellers to the Depositor and the Depositor to the Issuer and with respect to a grant of a security interest in the ~~office~~ Trust Student Loans to the Indenture Trustee and with respect to the perfection of ~~the General Counsel of DCFS and the Company, addressed to you and~~ the Indenture Trustee’s interest in the Trust Student Loans. (h) The Representative shall have received from Sidley Austin LLP, counsel to the Underwriters, such opinion or opinions, dated the Closing Date and satisfactory in form and substance to ~~you and your counsel~~the Representative, with respect to the ~~effect that:~~validity of the Offered Notes, the Registration Statement, the Prospectus and other related matters as the Representative may require, and the Depositor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (i) ~~DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws~~ The Representative shall have received an opinion of ~~the State of Michigan with full power and authority~~ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special tax counsel to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, dated the ~~Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor~~ Closing Date and reasonably satisfactory in form and to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies effect (xa) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, that under current United States federal income tax law the Notes will be ~~duly issued~~ characterized as debt, and ~~entitled~~ the Issuer will not be characterized as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes and (b) that, subject to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreementqualifications set forth therein, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest statements made in the ~~Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution~~ Preliminary Disclosure Package and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ caption “U.S. Federal Income Tax Consequences,” insofar as they purport to constitute summaries of ~~the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", to the extent they constitute~~ matters of United States federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the United States federal income tax matters described therein. (j) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special counsel to the Indenture Trustee, and such other counsel reasonably satisfactory to the Representative and its counsel, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement. (k) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special counsel to the Eligible Lender Trustee and Interim Eligible Lender Trustee, and such other counsel reasonably satisfactory to the Representative and its counsel, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement. (l) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special counsel to the Owner Trustee, and such other counsel reasonably satisfactory to the Representative and its counsel, dated the Closing Date and satisfactory in form and substance to the Representative, with respect to such matters as are customary for the type of transaction contemplated by this Agreement. (m) The Class A-1, Class A-2, Class A-3 and Class A-4 Notes shall have been ~~reviewed~~ rated “AAA” by S&P, “Aaa” by ▇▇▇▇▇’▇ and “AAA” by Fitch. The Class B Notes shall have been rated “AA+” by S&P, “Aa1” by ▇▇▇▇▇’▇ and “AA+” by Fitch. (n) The Representative shall have received a certificate, dated the Closing Date, of an attorney-in-fact, a Vice President or more senior officer of the Depositor in which such ~~counsel~~ person, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Depositor in this Agreement are true and correct in all material ~~respects.~~ respects on and as of the Closing Date, (~~xix~~ii) ~~The statements contained~~ the Depositor has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iii) the representations and warranties of the Depositor in the ~~Prospectus~~ Transfer Agreement and ~~any supplement thereto under~~ the ~~headings "Payments on the Notes", "Payments on the Securities", "Form of Securities~~ Trust Agreement are true and ~~Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar~~ correct as ~~such statements constitute a summary~~ of the ~~Notes,~~ dates specified in the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing~~ Transfer Agreement and the Trust Agreement, ~~constitute~~ (iv) 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, (v) subsequent to the Time of Sale, there has been no material adverse change in the financial position or results of operation of the Depositor’s Student Loan business except as set forth in or contemplated by the Time of Sale Information and the Prospectus or as described in such certificate and (vi) the Prospectus does not contain any untrue statement of a ~~fair summary~~ material fact or omit to state 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. (o) On the Closing Date, the Certificates shall have been issued to or at the direction of the Depositor pursuant to the Trust Agreement. (p) The Representative shall have received a certificate, dated the Closing Date, of each Significant Guarantor (as defined in the Prospectus), to the effect that the information regarding such Significant Guarantor in the 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 light of the circumstances under which they were made, not misleading. (q) The Depositor will furnish, or cause to be furnished, to the Representative such number of conformed copies of such ~~documents~~opinions, certificates, letters and documents referenced in this Section 7 as the Representative reasonably requests.

Appears in 1 contract

Sources: Underwriting Agreement (Chase Education Loan Trust 2007-A)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of (i) RBSFP, RBS, (ii) Basis, Basis Investment and (iii) Liberty, LIG) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Depositor’s knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel in or special counsel for the ~~office of the General Counsel of DCFS and the Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company~~ result of which they have determined that the information of an accounting, financial or statistical nature set forth (A) in ~~good standing~~ the Preliminary FWP and Prospectus Supplement under the ~~laws~~ captions “Summary,” “Description of the ~~State~~ Mortgage Pool” and “Yield and Maturity Considerations”, (B) on Annexes A-1, A-2 and A-3 to each of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement,~~ the ~~Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement,~~ Prospectus Supplement and the ~~Administration Agreement~~Preliminary FWP, (C) in the Term Sheet and ~~had at all times~~(D) in the Pre-Pricing FWP agrees with the Master Tapes prepared by or on behalf of the Mortgage Loan Sellers, ~~and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.~~unless non-material deviations are otherwise noted in such letter; and (ii) ~~The Company has been duly organized~~ they have compared the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in the Mortgage Loan files and ~~is validly existing~~ in such other sources as ~~a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted~~ shall be specified by ~~it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement~~them, and ~~had at~~ found such data and information to be in agreement in all ~~times~~material respects, ~~and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments~~unless non-material deviations are otherwise noted in such letter. (~~iii~~j) ~~Each~~ You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Underwritten Certificates on the Closing Date are as described in Section 1(a)(xv) and that, as of ~~DCFS and~~ the ~~Company is duly qualified to do business and is~~ Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in ~~good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain~~ such ~~licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee~~ratings. (ivk) ~~The direction by~~ You shall have received from the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity Secretary or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion an Assistant Secretary of the ~~court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized~~Trustee, ~~executed and delivered by DCFS. (viii) The Purchase Agreement and~~ in his individual capacity, a certificate, dated the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending orClosing Date, to the ~~best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting~~ effect that the ~~invalidity of~~ information under the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth heading “Transaction Parties—The Trustee” in the Prospectus (Supplement is true and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator, Tax Administrator, Certificate Registrar and Custodian” in the Prospectus Supplement is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus Supplement is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus Supplement, is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of PAR, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to PAR under the heading “Transaction Parties—The Primary Servicer” in the Prospectus Supplement, is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Trust Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Trust Advisor under the heading “Transaction Parties—The Trust Advisor” in the Prospectus Supplement, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trust Advisor, PAR, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Underwritten Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto under~~ other matters related thereto. Any such opinions shall be dated the ~~headings "Payments on~~ Closing Date and addressed to the ~~Notes"~~Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, ~~"Payments on the Securities"~~and you and such counsel shall have received such additional information, ~~"Form of Securities~~ certificates and ~~Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar~~ documents as ~~such statements constitute a summary~~ you or they may have reasonably requested. If any of the ~~Notes~~conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, if the Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (WFRBS Commercial Mortgage Trust 2014-C24)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and Barclays Holdings contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and (a) in the case of Barclays, Barclays Holdings to the same extent as Barclays, (b) in the case of SGFC, Société Générale to the same extent as SGFC and (c) in the case of BSPRTCF, FBSPRT to the same extent as BSPRTCF) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and Barclays Holdings shall have ~~received~~ delivered to you a ~~letter~~certificate of Barclays Holdings, signed by an authorized officer of Barclays Holdings and dated the Closing Date, to the effect that: (i) the representations and warranties of Barclays Holdings 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifBarclays Holdings has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received with respect to Barclays Holdings and the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in their individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of formation and limited liability company agreement of the Depositor, as in effect on the Closing Date, and (ii) you shall have received from the Secretary or an Assistant Secretary of Barclays Holdings, in their individual capacity, a certificate, dated the Closing Date, to the effect that: (A) each individual who, as an officer or representative of Barclays Holdings, 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 (B) no event (including, without limitation, any act or omission on the part of Barclays Holdings) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of Barclays Holdings under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of Barclays Holdings) of the certificate of incorporation, by-laws or similar organizational documents of Barclays Holdings, as in effect on the Closing Date, and of the resolutions of Barclays Holdings. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to Barclays Holdings, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in their individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Certificate Administrator and ~~are~~ Trustee” in the Prospectus is true and correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator and Trustee” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Non-Serviced Master Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Non-Serviced Master Servicer under the heading “Transaction Parties—The BMO 2023-C7 Servicer, the BBCMS 2023-C22 Servicer, the BBCMS 2023-5C23 Servicer and the Benchmark 2023-B40 Servicer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Affiliated Special Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Affiliated Special Servicer under the heading “Transaction Parties—The Affiliated Special Servicer” in the Prospectus is true and correct in all material respects. (q) You shall have received from an officer of the Operating Advisor, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (r) You shall have received from an officer of the Asset Representations Reviewer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (s) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Master Servicer, the Special Servicer, the Non-Serviced Master Servicer, the Affiliated Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator, a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (t) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (u) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (v) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (BBCMS Mortgage Trust 2024-C24)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the ~~Offered Notes~~ Certificates subject to this Agreement will be subject to the accuracy of the representations and warranties on the part of the Depositor ~~herein~~as of the date hereof and the Specified Delivery Date, to the accuracy of the statements ~~of officers~~ of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor in all material respects of its obligations hereunder and to the following additional conditions precedent: (a) ~~The Prospectus~~ you shall have received a letter from Ernst & Young LLP dated the date h▇▇▇▇▇ and, if requested by you, dated the Specified Delivery Date, each in the forms heretofore agreed to; (b) all actions required to be taken and ~~any supplements thereto~~ all filings required to be made by the Depositor under the Act prior to the Specified Delivery Date shall have been ~~filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof,~~ duly taken or made; and prior to the ~~Closing~~ Specified Delivery 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~~instituted, or to the knowledge of the Depositor or ~~you~~any Underwriter, shall be contemplated by the ~~Commission or by any authority administering any state securities or blue sky law.~~Commission; (bc) On unless otherwise specified in Schedule I, the Certificates subject to this Agreement and offered by means of the Registration Statement shall be rated the ratings specified in Schedule I, and shall not have been lowered or ~~prior to the Closing Date,~~ placed on any credit watch with a negative implication for downgrade; (d) you shall have received ~~a letter~~opinions of Sidley Austin Brown & Wood LLP spe▇▇▇▇ ▇o▇▇▇▇▇ ▇▇ ▇▇▇ De▇▇▇▇tor and Credit Suisse First Boston LLC, dated ~~as of~~ the ~~Closing~~ Specified Delivery Date, ~~of KPMG LLP, certified public accountants,~~ in substantially in the form ~~of the drafts~~ agreed to ~~which you have previously agreed and otherwise in form and substance satisfactory~~ on or prior to ~~you and your counsel.~~such date; (ce) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You you shall have received an opinion of ~~in-house~~ special counsel to each Mortgage Loan Seller, dated the Specified Delivery Date, in the ~~office~~ form agreed to on or prior to such date; (f) you shall have received an opinion of counsel to the ~~General Counsel of DCFS and the Company, addressed to you and the Indenture~~ Trustee, dated the ~~Closing Date~~ Specified Delivery Date, in the form agreed to on or prior to such date, which shall also be addressed to the Rating Agencies, the Depositor and ~~satisfactory~~ the Trustee or shall be accompanied by a reliance letter addressed to such parties; (g) you shall have received an opinion of counsel of each Master Servicer, dated the Specified Delivery Date, in the form ~~and substance~~ agreed to on or prior to such date; (h) you ~~and your counsel~~shall have received an opinion of counsel of each Special Servicer, dated the Specified Delivery Date, in the form agreed to on or prior to such date; (i) you shall have received letters, dated the Specified Delivery Date, from counsel rendering opinions to the Rating Agencies, to the effect ~~that:~~that you may rely upon their opinion to such Rating Agencies, as if such opinion were rendered to you, or such opinions shall be addressed to you; (ij) ~~DCFS has been duly organized and is validly existing as~~ you shall have received a ~~limited liability company in good standing under the laws~~ certificate or certificates signed by such of the ~~State~~ principal executive, financial and accounting officers of ~~Michigan with full power and authority~~ the Depositor as you may request, dated the Specified Delivery Date, in the form agreed to ~~own its properties and conduct its business as presently conducted by it, and~~ on or prior to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.such date; (iik) ~~The Company has been duly organized and is validly existing as~~ you shall have received a ~~limited liability company in good standing under the laws~~ certificate of the ~~State~~ Trustee, signed by one or more duly authorized officers of ~~Michigan with full power and authority~~ the Trustee, dated the Specified Delivery Date, in the form agreed to ~~own its properties and conduct its business as presently conducted by it and~~ on or prior to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments.such date; (~~iii~~l) ~~Each~~ you shall have received a certificate of ~~DCFS and~~ the ~~Company is~~ Master Servicer, signed by one or more duly ~~qualified to do business and is in good standing~~authorized officers of the Master Servicer, ~~and has obtained all necessary licenses and approvals~~dated the Specified Delivery Date, in ~~each jurisdiction in which failure~~ the form agreed to ~~qualify~~ on or prior to ~~obtain~~ such ~~licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee.~~date; (ivm) ~~The direction~~ you shall have received a certificate of the Special Servicer, signed by one or more duly authorized officers of the Special Servicer, dated the Specified Delivery Date, in the form agreed to on or prior to such date; (n) the Mortgage Loan Sellers shall have sold the Mortgage Loans to the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the ~~Indenture, nor the execution and delivery of this Agreement, the~~ Mortgage Loan Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them.Agreements; and (xo) ~~There are no actions~~you shall have received such other documents, ~~proceedings or investigations pending or~~certificates, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution letters and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreementopinions as you may reasonably request. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 1 contract

Sources: Underwriting Agreement (CSFB Mort Sec Corp Comm Mort Pas THR Certs Sers 2004 C1)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and BANA contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and BANA shall have ~~received~~ delivered to you a ~~letter~~certificate of BANA, signed by an authorized officer of BANA and dated the Closing Date, to the effect that: (i) the representations and warranties of BANA 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifBANA has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor, a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of BANA, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of BANA, 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 BANA) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of BANA 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 BANA) of the articles of association and by-laws of BANA, as in effect on the Closing Date, and of the resolutions of BANA and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Reports and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Certificate Administrator” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Trustee” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from an officer of the Third Party Purchaser, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Third Party Purchaser under the heading “Credit Risk Retention—Third Party Purchaser” in the Prospectus, is true and correct in all material respects. (r) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Third Party Purchaser, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (u) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank5 2026-5yr20)

Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Offered ~~Notes will be~~ Securities are subject to the accuracy of the representations and warranties on the part of the Depositor herein, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following ~~additional conditions precedent~~conditions: (ai) The ~~Prospectus and any supplements~~ Registration Statement (or if a post-effective amendment thereto is required to be filed under the Act, such post-effective amendment) shall have ~~been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ become effective; no stop order suspending the effectiveness of the Registration Statement shall ~~have been issued~~ be in effect, and no ~~proceedings~~ proceeding for ~~that~~ such purpose or pursuant to Section 8A under the Act shall be pending before or threatened by the Commission; the Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus shall have been ~~instituted or~~timely filed with the Commission under the Act (in the case of an Issuer Free Writing Prospectus, to the ~~knowledge~~ extent required by Rule 433 under the Act) and in accordance with Section 6(a) hereof; (ii) all representations and warranties of the ~~Depositor or you~~Bank contained in this Agreement relating to the Offered Securities are, at and as of the Closing Date for such Offered Securities, true and correct and the statements of the Bank and its officers made in any certificates delivered pursuant to this Agreement shall be ~~contemplated by the Commission or by any authority administering any state securities or blue sky law. (b) On or prior to the Closing Date, you shall have received a letter, dated~~ true and correct on and as of the Closing Date; (iii) the Bank shall have performed all of its obligations hereunder required to be performed; (iv) there shall not have occurred any downgrading, nor shall any notice have been given of ~~KPMG LLP~~any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, ~~certified public accountants, substantially~~ in the ~~form~~ rating accorded any debt securities of the ~~drafts to which you~~ Bank by Standard & Poor’s Ratings Group, ▇▇▇▇▇’▇ Investors Service, Inc. or Fitch Ratings, Inc. and (v) there shall have ~~previously agreed~~ been no material adverse change in the financial condition, earnings, business or operations of the Bank and ~~otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or~~its subsidiaries, ~~if earlier~~taken as a whole, ~~the dates as of which information is given~~ from that set forth in the Registration ~~Statement~~ Statement, the Time of Sale Information (~~exclusive of~~ excluding any amendment or supplement thereto) and the Prospectus (exclusive of any ~~supplement thereto~~amendments or supplements thereto subsequent to the date hereof), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, ~~materially impairs the investment quality of the Offered Notes or~~ makes it ~~impractical or inadvisable~~ impracticable to market the Offered ~~Notes; (ii) any suspension or limitation of trading in securities generally~~ Securities on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or terms and in the ~~over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities~~ manner contemplated in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwritersthis Agreement, the ~~effect~~ Registration Statement, the Time of ~~any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of~~ Sale Information and the ~~sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States~~Prospectus. (db) ~~You~~ Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Canada LLP, Canadian counsel for the Bank, shall have ~~received an opinion of in-house counsel in~~ furnished to the ~~office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee~~Representatives its opinion, dated the Closing ~~Date~~ Date, subject to such exceptions and ~~satisfactory in form and substance to you and your counsel~~qualifications as would be customary, to the effect that: (i) ~~DCFS~~ the Bank validly exists as a Schedule I bank under the Bank Act (Canada) and has the corporate power to create, issue and sell the Offered Securities; (ii) the issuance, sale and delivery of the Offered Securities have been duly authorized by the Bank and all necessary corporate action has been taken by the Bank to validly issue the Offered Securities; all necessary corporate action has been taken by the Bank to authorize the issuance of the Common Shares issuable upon conversion of the Offered Securities pursuant to the Indenture and upon the conversion of the Offered Securities in accordance with their terms, the Common Shares will be validly issued as fully paid and non-assessable common shares of the Bank; (iii) the Offered Securities will constitute direct, general, conditional and subordinated obligations of the Bank and will rank at least pari passu with all other direct, general, conditional and subordinated obligations of the Bank. In the event of the Bank’s insolvency, liquidation, or dissolution under Canadian law, the Offered Securities will rank junior in right of payment to: (a) all of the Bank’s existing and future senior indebtedness; (b) all of the Bank’s existing and future secured indebtedness; and (c) certain other obligations that in the event of the Bank’s insolvency are granted preferential treatment under Canadian law; (iv) this Agreement has been duly ~~organized and~~ authorized, executed and, to the extent delivery is ~~validly existing as~~ a ~~limited liability company in good standing under~~ matter governed by the laws of the ~~State~~ Province of ~~Michigan~~ Québec or Ontario and the federal laws of Canada applicable therein, delivered by the Bank; (v) the Indenture has been duly authorized, executed and, to the extent delivery is a matter governed by the laws of the Province of Québec or Ontario and the federal laws of Canada applicable therein, delivered by the Bank and, to the extent validity thereof is a matter governed by the laws of the Province of Québec or Ontario and the federal laws of Canada applicable therein, is valid and, with ~~full power~~ respect to the provisions thereof governed by the laws of the Province of Ontario and ~~authority~~ the federal laws of Canada applicable therein, constitutes a legal, valid and binding obligation of the Bank enforceable in accordance with its terms, subject to ~~own its properties~~ bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and ~~conduct its business as presently conducted~~ similar laws of general applicability relating to or affecting creditors’ rights, to general equity principles and to limitations under the Currency Act (Canada); (vi) the execution and delivery by itthe Bank of, and ~~to enter into and perform~~ the performance by the Bank of its obligations under this Agreement, the ~~Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement,~~ Indenture and the ~~Administration Agreement~~Offered Securities do not contravene any existing provision of applicable law or result in a breach (whether after notice or lapse of time or both) of any of the terms, ~~and had at all times, and now has,~~ conditions or provisions of the ~~power, authority and legal right to acquire, own, sell and service~~ Bank Act (Canada) or the ~~Receivables.~~by-laws of the Bank; (iivii) ~~The Company has been duly organized~~ the statements in the Prospectus Supplement under the caption “Certain Income Tax Consequences—Certain Canadian Income Tax Considerations” together with the statements in the Basic Prospectus under the caption “Tax Considerations—Canadian Federal Income Tax Considerations,” insofar as such statements constitute a summary of the Canadian tax laws referred to therein, are accurate and ~~is validly existing as a limited liability company~~ fairly summarize in ~~good standing~~ all material respects the Canadian tax laws referred to therein; (viii) no registration, filing or recording of the Indenture under the laws of the ~~State~~ Province of ~~Michigan with full power~~ Québec or Ontario and ~~authority~~ the federal laws of Canada applicable therein is necessary in order to ~~own its properties~~ preserve or protect the validity or enforceability of the Indenture or the Offered Securities; (ix) no consent, approval or authorization of, or registration, recordation or filing with, any governmental body or agency in Canada is required on the part of the Bank pursuant to the laws of the Province of Québec and ~~conduct its business as presently conducted~~ the federal laws of Canada applicable therein for the issuance and sale by ~~it and~~ the Bank of the Offered Securities to ~~enter into and perform its obligations under~~ the ~~Trust~~ Underwriters pursuant to this Agreement and the ~~Purchase~~ Indenture, except such as have been obtained under the Bank Act (Canada) and the Québec securities laws; (x) there are no documents required to be filed with the Autorité des marchés financiers (the “AMF”) in connection with the Registration Statement or the Prospectus; (xi) the Canadian disclosure documents that are incorporated by reference in the Registration Statement (except for the financial statements and other financial and statistical data included therein or omitted therefrom, as to which such counsel express no opinion), when they were filed with the AMF under Québec securities laws, appear on their face to have been appropriately responsive in all material respects to the requirements of Québec securities laws as interpreted and applied by the AMF; (xii) a court of competent jurisdiction in the Province of Ontario (an “Ontario Court”) would give effect to the choice of the law of the State of New York (“New York Law”) as the proper law governing the Indenture (to the extent the Indenture is governed by New York Law), the Offered Securities and this Agreement, provided that such choice of law is bona fide (in the sense that it was not made with a view to avoiding the consequences of the laws of any other jurisdiction) and ~~had at all times~~provided that such choice of law is not contrary to public policy (“Public Policy”), as that term is understood under the laws in the Province of Ontario and ~~now has~~the federal laws of Canada applicable therein (“Ontario Law”); (xiii) in an action on a final and conclusive judgment in personam of any state or federal court sitting in The City of New York, New York (a “New York Court”) that is not impeachable as void or voidable under New York Law, an Ontario Court would recognize the validity of the appointment by the Bank of National Corporate Research, Ltd. as its agent for service in the United States of America under the Indenture, the ~~power~~Offered Securities and this Agreement and to the provisions in the Indenture, ~~authority and legal right~~ the Offered Securities, this Agreement whereby the Bank has submitted to ~~acquire, own, sell and hold~~ the ~~excess cash flow from the Reserve Account and the Fixed Value Payments.~~jurisdiction of a New York Court; (~~iii~~xiv) ~~Each of DCFS and~~ if the ~~Company~~ Indenture (to the extent the Indenture is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable governed by ~~the Depositor~~New York Law), the ~~Owner Trustee~~ Offered Securities or this Agreement are sought to be enforced in the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee Province of Ontario in accordance with the ~~Trust Agreement~~ laws applicable thereto as chosen by the parties, namely New York Law, an Ontario Court would, subject to the qualifications set out in paragraph (xi) above, recognize the choice of New York Law, and ~~delivered~~apply such law, provided that in any such proceeding, and notwithstanding the parties’ choice of law, the ~~Certificates~~ Ontario Court (A) will not take judicial notice of the provisions of New York Law but will only apply such provisions if they are pleaded and proven by expert testimony; (B) will apply Ontario Law that under such law would be ~~duly issued~~ characterized as procedural and ~~entitled~~ will not apply any New York Law that under Ontario Law would be characterized as procedural; (C) will apply provisions of Ontario Law that have overriding effect; (D) will not apply New York Law if such application would be characterized under Ontario Law as the direct or indirect enforcement of a foreign revenue, expropriatory or penal law or if its application would be contrary to Public Policy; and (E) will not enforce the ~~benefits~~ performance of any obligation that is illegal under the laws of any jurisdiction in which the obligation is to be performed; (xv) an Ontario Court would enforce a final and ~~security afforded by the Trust Agreement, subject as to~~ conclusive judgment in personam of a New York Court that is subsisting and unsatisfied respecting the enforcement of ~~remedies~~ the Indenture, the Offered Securities and this Agreement that is not impeachable as void or voidable under New York Law for a sum certain (xthe “Foreign Judgment”) provided that (A) the New York Court had jurisdiction over the subject matter and the parties to such agreements as recognized by the Ontario Court and the New York Court (although submission by the Bank to the jurisdiction of the New York Court pursuant to the Indenture, the Offered Securities and this Agreement will be sufficient for this purpose); (B) no new admissible evidence, right or defense relevant to the action accrues or is discovered prior to the rendering of a judgment by the Ontario Court; (C) an action to enforce the Foreign Judgment is commenced in the Ontario Court within any applicable ~~bankruptcy~~limitation period; (D) the Ontario Court has discretion to stay or decline to hear an action on the Foreign Judgment if the Foreign Judgment is under appeal, ~~insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally~~ or there is another subsisting judgment in any jurisdiction relating to the same cause of action; and (yE) the Ontario Court will render judgment only in Canadian dollars; subject to ~~general~~ the following defenses: (1) the Foreign Judgment was obtained by fraud or in a manner contrary to the principles of ~~equity~~ natural justice; (~~regardless~~ 2) the Foreign Judgment is for a claim which under Ontario Law would be characterized as based on a foreign revenue, expropriatory or penal law; (3) the Foreign Judgment is contrary to Public Policy or to an order made by the Attorney General of ~~whether~~ Canada under the ~~enforcement~~ Foreign Extraterritorial Measures Act (Canada) or by the Competition Tribunal under the Competition Act (Canada) in respect of certain judgments referred to therein; or (4) the Foreign Judgment has been satisfied or is void or voidable under New York Law; and (xvi) such ~~remedies~~ counsel’s opinion as summarized in the Prospectus under the heading “Limitations on Enforcement of U.S. Laws Against the Bank, our Management and Others” regarding enforceability of U.S. securities laws is ~~considered in a proceeding in equity or at law)~~true and correct. (vc) ~~The direction by~~ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for the ~~Depositor~~ Bank, shall have furnished to the ~~Indenture Trustee~~ Representatives its opinion, dated the Closing Date, subject to ~~authenticate the Notes has been duly authorized by the Depositor and~~such exceptions and qualifications as would be customary, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law).effect that: (vii) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This assuming this Agreement has been duly authorized, executed and delivered by ~~DCFS.~~the Bank insofar as the laws of Canada, Québec and Ontario are concerned, this Agreement has been duly executed and delivered by the Bank; (~~viii~~ii) ~~The Purchase Agreement~~ all regulatory consents, authorizations, approvals and filings required to be obtained or made by the ~~Trust Agreement~~ Bank under the Covered Laws for the issuance, sale and delivery of the Offered Securities by the Bank to the Underwriters have been obtained or made; (iii) assuming the Indenture has been duly authorized, executed and delivered by the ~~Company~~ Bank insofar as the laws of Canada, Québec and Ontario are concerned, the ~~legal,~~ Indenture has been duly executed and delivered by the Bank and duly qualified under the Trust Indenture Act of 1939 and constitutes a valid and legally binding obligation of the Bank enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; provided, however, that such counsel shall not be required to express any opinion with respect to the subordination provisions and the provisions relating to an NVCC Automatic Conversion upon the occurrence of a Non-Viability Trigger Event (as such terms are defined in the Indenture) of the Offered Securities, which will be governed by the laws of the Province of Ontario and the Federal laws of Canada applicable therein; (iv) assuming the Offered Securities have been duly authorized, executed, issued and delivered by the Bank insofar as the laws of Canada, Québec and Ontario are concerned, they have been duly executed, authenticated, issued and delivered by the Bank, and constitute valid and legally binding obligations of the ~~Company~~ Bank enforceable ~~against the Company~~ in accordance with their terms, ~~except (x) the enforceability thereof may be~~ subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium ~~or other~~ and similar laws ~~now or hereafter in effect~~ of general applicability relating to or affecting creditors' ’ rights and ~~(y) the remedy of specific performance and injunctive and other forms of equitable relief may~~ to general equity principles; provided, however, that such counsel shall not be ~~subject~~ required to ~~equitable defenses and~~ express any opinion with respect to the ~~discretion~~ subordination provisions and the provisions relating to an NVCC Automatic Conversion upon the occurrence of a Non-Viability Trigger Event (as such terms are defined in the Indenture) of the ~~court before~~ Offered Securities, which ~~any proceeding therefor may~~ will be ~~brought.~~governed by the laws of the Province of Ontario and the Federal laws of Canada applicable therein; (ixv) ~~Neither~~ assuming the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best validity of such ~~counsel's knowledge after due inquiry~~action under the laws of Canada, ~~threatened before any court~~Québec and Ontario, ~~administrative agency or other tribunal (1) asserting~~ under the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State laws of the State of ~~Delaware~~ New York relating to submission of personal jurisdiction, the Bank has validly and ~~will constitute a first priority perfected security interest therein~~effectively submitted to the personal jurisdiction of any state or Federal court in The City of New York, State of New York and has validly appointed National Corporate Research, Ltd. as its authorized agent for the purposes described in Section 17 of this Agreement; and (vi) the Bank is not an “investment company” as defined in the Investment Company Act of 1940. ~~No filing or other action, other than the filing~~ For purposes of the ~~UCC-1 financing statements with~~ opinion in paragraph (ii) above, “Covered Laws” means the ~~Secretary~~ federal laws of ~~State~~ the United States and the laws of the State of ~~Delaware referred~~ New York (including the published rules or regulations thereunder) that in our experience normally are applicable to ~~above~~general business corporations and transactions such as those contemplated by the Underwriting Agreement; provided, however, that such term does not include Federal or state securities laws, other antifraud laws and fraudulent transfer laws, tax laws, the Employee Retirement Income Security Act of 1974, antitrust laws or any law that is ~~necessary~~ applicable to ~~perfect and maintain~~ the ~~interest~~ Bank, the Terms Agreement or the ~~security interest~~ transactions contemplated thereby solely as part of a regulatory regime applicable to the ~~Indenture Trustee in~~ Bank or its affiliates due to its or their status, business or assets. Such counsel shall also furnish a letter stating that they have reviewed the ~~Receivables~~Registration Statement, the ~~security interests in~~ Basic Prospectus, the ~~Financed Vehicles securing the Receivables~~ Prospectus Supplement and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.pricing informati

Appears in 1 contract

Sources: Underwriting Agreement (Royal Bank of Canada)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of (i) Basis, Basis Investment and (ii) Liberty Island, Liberty Island Group LLC) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Depositor’s knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and RBS shall have ~~received~~ delivered to you a ~~letter~~certificate of RBS, signed by an authorized officer of RBS and dated the Closing Date, to the effect that: (i) the representations and warranties of RBS 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifRBS has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to RBS, a good standing certificate from the Registrar of Companies for Scotland and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of RBS Securities (as agent for RBS), in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of RBS Securities (as agent for RBS), 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 RBS) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of RBS under the laws of Scotland. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of RBS Securities (as agent for RBS)) of the certificate of incorporation, resolutions and articles of association of RBS, as in effect on the Closing Date, and of the resolutions of RBS and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel for the Depositor (in the ~~office~~ case of the ~~General Counsel~~ following clauses (i) through (v)) and from special counsel to the Depositor (in the case of ~~DCFS and~~ the ~~Company~~following clauses (vi) through (xii)), ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date and satisfactory in form and substance to you and ~~your counsel,~~ counsel for the Underwriters substantially to the effect that: (i) ~~DCFS has been~~ The Depositor is a corporation, duly ~~organized and is~~ incorporated, validly existing ~~as a limited liability company~~ and in good standing under the laws of the State of ~~Michigan with full~~ Delaware, and has all requisite corporate power and authority to ~~own its properties and conduct its business as presently conducted by it~~execute, ~~and to enter into~~ deliver and perform its obligations under ~~this Agreement,~~ each of the ~~Sale~~ Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements and this Agreement~~, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables~~. (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ Neither the ~~laws~~ issuance or sale of the ~~State~~ Underwritten Certificates nor the execution, delivery or performance of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under~~ the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each terms of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale Pooling and Servicing Agreement and the ~~Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance~~ Mortgage Loan Purchase Agreements conflicts with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a ~~material breach,~~ breach or violation ~~or acceleration~~ of, or constitute a default under, ~~any term or provision of~~ (a) the articles of ~~organization~~ incorporation or ~~operating agreement~~ by-laws of ~~DCFS or~~ the ~~Company~~Depositor, ~~or of~~ (b) to such counsel’s knowledge, any indenture or other ~~material~~ agreement or ~~material~~ instrument to which ~~DCFS or~~ the ~~Company~~ Depositor is a party or by which ~~either of them~~ it is bound, ~~or result in a violation of or contravene the terms of~~ (c) any ~~statute, order~~ statute or regulation applicable to ~~DCFS~~ the Depositor, or ~~the Company~~ (d) to such counsel’s knowledge, any order of any court, regulatory body, administrative agency or governmental body having jurisdiction over ~~either of them~~the Depositor. (xiii) ~~There~~ To such counsel’s knowledge, there are no legal or governmental actions, investigations or proceedings pending to which the Depositor is a party, or ~~investigations pending or~~threatened against the Depositor, ~~to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal~~ that (1a) ~~asserting~~ assert the invalidity of this Agreement, the ~~Trust~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements or ~~any~~ the Certificates, (b) seeks to prevent the issuance of the ~~Basic Documents, (2) seeking to prevent~~ Certificates or the consummation of any of the transactions contemplated by ~~any of~~ this Agreement, the ~~Basic Documents~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements or ~~the execution and delivery thereof,~~ (3c) ~~that might~~ would materially and adversely affect the performance by ~~DCFS~~ the Depositor of its obligations under, or the validity or enforceability of, any of this Agreement, the ~~Purchase Agreement, the Trust Agreement, the Sale~~ Pooling and Servicing ~~Agreement~~Agreement and the Mortgage Loan Purchase Agreements or the Certificates or any material rights with regard to any Mortgaged Property, or ~~the Administration Agreement~~if adversely determined, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial ~~condition, earnings, prospects, business or properties~~ condition of the ~~Depositor and its subsidiaries~~Depositor; for purposes of the foregoing, ~~taken as~~ such counsel will be permitted to state that he or she has not regarded any legal or governmental actions, investigations or proceedings to be “threatened” unless the potential litigant or governmental authority has manifested to such counsel a ~~whole~~present intention to initiate such actions, investigations or proceedings. (~~xii~~iv) ~~Nothing has come to such counsel's attention that would lead such counsel to believe that~~ Each of this Agreement, the ~~representations~~ Pooling and ~~warranties of (x) the Company contained in the Purchase~~ Servicing Agreement and the ~~Trust~~ Mortgage Loan Purchase Agreements has been duly authorized, executed and delivered by the Depositor. (v) Based upon such counsel’s review of those laws, regulations and rules of the State of New York and the United States of America that are normally applicable to transactions of the type contemplated by this Agreement, the Pooling and Servicing Agreement ~~are~~ and the Mortgage Loan Purchase Agreements, to the knowledge of such counsel, no consent, approval, authorization of, registration or filing with, or notice to, any state or federal court or other ~~than as stated therein~~ governmental agency or ~~(y) DCFS contained~~ body is required for the consummation by the Depositor of the transactions contemplated in this Agreement, the ~~Trust~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements, except (i) such as may be required under the “Blue Sky” laws of any jurisdiction in connection with the purchase and the offer and sale of the Underwritten Certificates by the Underwriters, as to which such counsel may express no opinion; (ii) any recordation of the assignments of the Mortgage Loans required under the Pooling and Servicing Agreement that has not yet been completed; and (iii) those that, if not so obtained, would not materially and adversely affect the ability of the Depositor to perform its obligations under this Agreement, the ~~Purchase Agreement or the Sale~~ Pooling and Servicing Agreement ~~are other than as stated therein~~and the Mortgage Loan Purchase Agreements. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviiivi) The statements in the Prospectus under the headings ~~"Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles"~~ “ERISA Considerations” and ~~"-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables"~~“Material Federal Income Tax Consequences”, to the extent that they ~~constitute~~ describe certain matters of federal law or legal conclusions with respect thereto, ~~have been reviewed~~ provide a fair and accurate summary of such matters and conclusions; (vii) As described in the Prospectus Supplement and assuming compliance with the Pooling and Servicing Agreement, each of REMIC I, REMIC II and REMIC III will qualify as a REMIC within the meaning of Sections 860A through 860G (the “REMIC Provisions”) of the Internal Revenue Code of 1986, as amended (the “Code”); (viii) The Pooling and Servicing Agreement should not be required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund created under the Pooling and Servicing Agreement is not required to be registered under the Investment Company Act; (ix) Each of the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement constitutes the legal, valid and binding agreement of the Depositor, enforceable against the Depositor 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 ~~such counsel~~ jury, oral amendments to written agreements or rights of set off, (b) provisions relating to submission to jurisdiction, venue or service of process or (c) provisions purporting to prohibit, restrict or condition the assignment of, or grant of a security interest in, the rights under the Mortgage Loan Purchase Agreements or the Pooling and ~~are correct~~ Servicing Agreement or property subject thereto, may be limited by applicable law or considerations of public policy; (x) The Registration Statement, as of its effective date, and the Prospectus, as of the date thereof (in each case, with the exception of any information incorporated by reference therein, any numerical, financial, statistical and computational information included therein, any Mortgage Loan Seller Covered Information, any General Master Servicer Covered Information, any General Special Servicer Covered Information, any NCB Master Servicer and Co-op Special Servicer Covered Information, any Primary Servicer Covered Information, any Certificate Administrator Covered Information, any Trust Advisor Covered Information and any Trustee Covered Information), appeared on their respective faces to be appropriately responsive in all material ~~respects.~~respects to the requirements of the 1933 Act and the rules and regulations thereunder applicable to such documents as of the relevant date; (~~xix~~xi) The statements contained in the Prospectus ~~and any supplement thereto~~ Supplement under the ~~headings "Payments on~~ heading “Description of the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture"~~Offered Certificates”, insofar as such statements ~~constitute a summary~~ purport to summarize material terms of the ~~Notes~~Certificates, are correct in all material respects; and (xii) When the ~~Indenture~~Certificates have been duly authorized, executed, authenticated and delivered in the ~~Administration Agreement,~~ manner contemplated in the ~~Purchase Agreement, the Sale~~ Pooling and Servicing Agreement and the ~~Trust~~ Underwritten Certificates have been paid for by, and sold to the Underwriters pursuant to this Agreement, ~~constitute~~ the Underwritten Certificates 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 and on certificates furnished by public officials. Such opinion, to the extent covering clauses (iv), (ix) and (xii), may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto. Such opinion, to the extent covering clause (iv) and clauses (vi) through (xii) may be qualified as an opinion only on the laws of the State of New York and the federal law of the United States. You shall have also been advised by special counsel to the Depositor, in one of the foregoing opinions, dated the Closing Date and satisfactory in form and substance to you and counsel for the Underwriters, substantially to the effect that (i) the Registration Statement became effective on a ~~fair summary~~ date certain under the 1933 Act, (ii) to such counsel’s knowledge, the Registration Statement is effective on the Closing Date and (iii) to such counsel’s knowledge, no stop order with respect thereto has been issued by the Commission. You shall have received one or more letters of ~~such documents~~counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (g) You shall have received from Scottish counsel to RBS (in the case of the following clauses (i) and (iii)(a)) and in-house counsel to RBS Securities, as agent for RBS (in the case of the following clauses (ii), (iii)(b), (iv) and (v)), one or more favorable opinions, dated the Closing Date and satisfactory in form and substance to you and counsel for the Underwriters, to the effect that: (i) RBS is a public limited company duly organized, validly existing and in good standing under the laws of Scotland and has all requisite power and authority to enter into and perform its obligations under this Agreement. (ii) This Agreement has been duly authorized, executed and delivered on behalf of RBS by RBS Securities (as its agent). (a) No authorization, approval, consent, license, exemption, filing, registration, notarization or other requirement of government, judicial or public bodies and authorities of or in Scotland is required to be obtained by RBS in connection with the consummation by RBS of the transactions contemplated by this Agreement; (

Appears in 1 contract

Sources: Underwriting Agreement (WFRBS Commercial Mortgage Trust 2014-C19)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from the Accounting Firms copies of the Accountants’ Due Diligence Reports and from Deloitte letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the effect ~~that: (i) DCFS~~ that Deloitte has ~~been duly organized and is validly existing~~ performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which it has determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the respective compilations of information and data regarding the Mortgage Loans prepared by or on behalf of the Mortgage Loan Sellers and provided to Deloitte (such compilations, the “Master Tapes”), unless non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Certificate Administrator, in his or her individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Certificate Administrator” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Trustee” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the “retaining sponsor” (as defined in the Risk Retention Rules), 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank5 2025-5yr18)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and Nomura contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇▇ shall have ~~received~~ delivered to you a ~~letter~~certificate of Nomura, signed by an authorized officer of Nomura and dated the Closing Date, to the effect that: (i) the representations and warranties of Nomura 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇▇ has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received ~~an opinion~~ with respect to each of ~~in-house counsel in the office of the General Counsel of DCFS~~ Nomura and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables good standing certificate from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware ~~and will constitute a first priority perfected security interest therein. No filing~~ dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or ~~other action, other than the filing~~ an Assistant Secretary of the ~~UCC-1 financing statements~~ Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, signed this Agreement, or any other document or certificate delivered on or before the Closing Date in connection with the ~~Secretary~~ transactions contemplated herein, was at the respective times of ~~State~~ 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of ~~Delaware~~ Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of formation and limited liability company agreement of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor (if any) relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of Nomura, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of Nomura, 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 Nomura) has occurred since the date of the certificate referred to ~~above, is necessary to perfect and maintain~~ in Section 6(d) hereof which has affected the ~~interest or~~ existence of Nomura under the ~~security interest~~ laws of the ~~Indenture Trustee in~~ United States of America. Such certificate shall be accompanied by true and complete copies (certified as such by the ~~Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds~~ Secretary or an Assistant Secretary of ~~each~~ ▇▇▇▇▇▇) of the ~~foregoing against third parties~~certificate of formation and amended and restated limited liability company agreement of Nomura, as in effect on the Closing Date, and of the resolutions of Nomura (if any) relating to the transactions contemplated in this Agreement. (~~xvi~~f) ~~The Receivables are tangible chattel paper as defined~~ You shall have received from special counsel to the Depositor, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the ~~UCC~~Underwriters. (~~xvii~~g) ~~The~~ You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and ~~Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in~~ to the Prospectus (as of the date thereof and ~~any supplement thereto)~~as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (~~xviii~~h) ~~The statements~~ You shall have received from special counsel to ▇▇▇▇▇▇, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third-party accounting firm a copy of (x) the Accountants’ Due Diligence Reports and (y) letters satisfactory in form and substance to you and counsel for the Underwriters, each to be dated on or about the business day immediately preceding the Closing Date, 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 (A) in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet [and (D) the Pre-Pricing Supplement][INCLUDE BRACKETED LANGUAGE ONLY IF A SUPPLEMENT TO PRELIMINARY PROSPECTUS WAS FILED PRIOR TO THE DATE OF THE UNDERWRITING AGREEMENT] agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the ~~extent they constitute matters of law or legal conclusions with respect thereto~~immediately preceding clause (i) to information contained in the Mortgage Loan files and in such other sources as shall be specified by them, ~~have been reviewed by~~ and found such ~~counsel~~ data and ~~are correct~~ information to be in agreement in all material respects, unless non-material deviations are otherwise noted in such letter. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 1 contract

Sources: Underwriting Agreement (Nomura Commercial Asset Depositor Co LLC)

Conditions to the Obligations of the Underwriters. The obligations of ~~the Underwriters~~ each Underwriter to purchase ~~and pay for~~ the ~~Offered~~ Notes ~~will~~ shall be subject to the accuracy of the representations and warranties on the part of the Depositor herein, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following ~~additional conditions precedent~~conditions: (a) The ~~Prospectus~~ Registration Statement shall be effective and ~~any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration Statement shall ~~have been issued~~ be in effect on the Closing Date and no proceedings for that purpose shall ~~have been instituted or~~be pending before, ~~to the knowledge of the Depositor~~ or ~~you~~threatened by, ~~shall be contemplated by~~ the Commission ~~or by any authority administering any state securities or blue sky law~~on the Closing Date. (b) PGF and Petrobras shall have filed the Prospectus Supplement with the Commission pursuant to Rule 424(b) within two Business Days of the date hereof and all documents incorporated therein by reference shall have been filed with the Commission prior to the date of such filing, and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act. (c) On or prior to the Closing Date (i) a certified copy of the Original Indenture and (ii) a certified copy of a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith shall have been delivered to the Underwriters. (d) On or prior to the Closing Date, ~~you~~ the following shall have ~~received a letter~~been executed and delivered to the Underwriters, each dated ~~as of~~ the Closing Date: (i) the Original Indenture, ~~of KPMG LLP, certified public accountants, substantially in the form~~ as supplemented by each of the ~~drafts to which you have previously agreed~~ Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh Supplemental Indenture, the Eighth Supplemental Indenture and ~~otherwise~~ the Ninth Supplemental Indenture duly executed and delivered by PGF and the Trustee in form and substance ~~satisfactory~~ reasonably acceptable to ~~you~~ such Underwriter; and (ii) the Guaranties duly executed and ~~your counsel~~delivered by Petrobras and the Trustee in form and substance reasonably acceptable to the Underwriters. (ce) ~~Subsequent to~~ All of the applicable taxes, fees and other charges due and owing in connection with the execution and delivery of the Transaction Documents shall have been paid. (f) The representations and warranties of the Companies in this Underwriting Agreement ~~or,~~ and in any of the other Transaction Documents to which the Companies are parties shall be true and correct on the date hereof and as of the Closing Date with the same effect as if ~~earlier~~made on the Closing Date. (g) The Underwriters shall have received from KPMG Auditores Independentes, the ~~dates as of which~~ independent public accountants for the Companies for the years ended December 31, 2011 and 2010, on the date hereof, a comfort letter dated the date hereof addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, concerning the financial statements and certain information ~~is given~~ with respect to the Companies set forth in the ~~Registration Statement~~ Final Offering Document (~~exclusive of any amendment thereto~~including the documents incorporated by reference therein). (h) The Underwriters shall have received from PricewaterhouseCoopers Auditores Independentes, the independent public accountants for the Companies , (x) on the date hereof, a comfort letter dated the date hereof addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, concerning the financial statements and certain information with respect to the Companies set forth in the Final Offering Document (including the documents incorporated by reference therein) and (y) on the ~~Prospectus (exclusive of any supplement thereto)~~Closing Date, ~~there shall not have occurred~~ a “bring down” comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters. (i) ~~any change or any development involving a prospective change in or affecting particularly~~ The Financial Industry Regulatory Authority shall have approved the ~~business or properties of~~ underwriting arrangements contemplated herein and the ~~Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered~~ Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices shall be eligible for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of clearance and ~~payment for the Offered Notes or (vi) a material disruption has occurred in securities~~ settlement ~~or clearance services in the United States~~through DTC. (dj) ~~You~~ PGF shall have ~~received~~ furnished to the Underwriters a certificate of PGF, signed by an ~~opinion~~ authorized officer of ~~in-house counsel in~~ PGF acceptable to the ~~office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee~~Underwriters, dated the Closing Date and ~~satisfactory~~ in form and substance ~~to you and your counsel,~~ reasonably satisfactory to the ~~effect that~~Underwriters certifying: (i) ~~DCFS has~~ that the conditions set forth in subsections (a), (b) and (c) of this Section 6 have been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.satisfied; (ii) ~~The Company~~ that no stop order suspending the effectiveness of the Registration Statement, the Final Offering Document or any amendment thereto has been ~~duly organized~~ issued and ~~is validly existing as a limited liability company in good standing under~~ no proceedings therefor have been initiated or threatened by the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments.Commission; (iii) ~~Each~~ that the representations and warranties of ~~DCFS~~ PGF in this Underwriting Agreement and in any of the ~~Company~~ other Transaction Documents to which PGF is ~~duly qualified to do business~~ a party are true and is correct in ~~good standing~~all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and PGF has ~~obtained~~ complied with all ~~necessary licenses~~ the agreements and ~~approvals, in each jurisdiction in which failure~~ satisfied all the conditions on its part to ~~qualify~~ be performed or satisfied hereunder at or prior to ~~obtain such licenses or approvals would render any Receivable unenforceable by~~ the ~~Depositor, the Owner Trustee or the Indenture Trustee.~~Closing Date; (iv) ~~The direction by~~ that since the ~~Depositor to~~ date of the ~~Owner Trustee to authenticate~~ most recent financial statements included in the ~~Certificates~~ Final Offering Document (exclusive of any amendment or supplement thereto), there has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest no material adverse change in the ~~Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement,~~ condition (financial or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"otherwise), ~~nor~~ prospects, earnings, business or properties of PGF, taken as a whole, whether or not arising from transactions in the ~~fulfillment~~ ordinary course of ~~the terms thereof by DCFS~~business, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in or contemplated by the ~~Prospectus~~ Final Offering Document (exclusive of any amendment or supplement thereto); (v) that no Default or Event of Default (or other event that with the passage of time or notice, or both, will ripen into a Default or an Event of Default) under the Notes or the Indenture has occurred and is continuing as of the Closing Date; (vi) as to the incumbency of the officers or representatives of PGF signing the applicable Transaction Documents and the other documents delivered hereunder and thereunder on behalf of PGF and containing specimen signatures thereof; (vii) that the Memorandum and Articles of Association of PGF have not been amended and is in full force and effect, copies of which shall be attached to such certificate; and (viii) that the copy of the Original Indenture attached to the certificate is a true and correct copy thereof. (k) Petrobras shall have furnished to the Underwriters a certificate, signed by an authorized officer of Petrobras acceptable to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters, certifying: (i) that the representations and warranties of Petrobras in this Underwriting Agreement and any of the other Transaction Documents to which it is a party 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, and Petrobras has 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; (ii) that since the date of the most recent financial statements included in the Final Offering Document (exclusive of any amendment or supplement thereto), there has been no ~~default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default~~ material adverse change in the ~~due performance and observance of any term~~condition (financial or otherwise), covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial conditionprospects, earnings~~, prospects~~, business or properties of ~~the Depositor~~ Petrobras and its subsidiaries, taken as a whole., whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Final Offering Document (exclusive of any amendment or supplement thereto); (~~xii~~iii) ~~Nothing~~ that no Default or Event of Default (or other event that with the passage of time or notice, or both, will ripen into a Default or an Event of Default) has ~~come to such counsel's attention that would lead such counsel to believe that~~ occurred and is continuing as of the ~~representations and warranties of (x)~~ Closing Date under the ~~Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement~~ Notes or the ~~Sale and Servicing Agreement are other than as stated therein.~~Indenture; (~~xiii~~iv) ~~The Depositor is~~ as to the ~~sole owner~~ incumbency of ~~all right, title and interest in, and has good and marketable title to,~~ the ~~Receivables~~ officers or representatives of Petrobras signing the applicable Transaction Documents and the other ~~property to be transferred by it to the Trust. The assignment~~ documents delivered hereunder and thereunder on behalf of ~~the Receivables, all documents~~ Petrobras and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document.containing specimen signatures thereof; and (~~xiv~~v) ~~Immediately prior~~ that the Estatuto Social of Petrobras has not been amended and is in full force and effect, copies of which shall be attached to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest thereinsuch certificate. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 1 contract

Sources: Underwriting Agreement (Petrobras - Petroleo Brasileiro Sa)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder to purchase ~~and pay for~~ the ~~Offered Notes will~~ Certificates shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Depositor herein~~Company contained herein as of the date 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 ~~officers of~~ the ~~Depositor~~ Company made in any certificates delivered pursuant to the provisions hereof, to the performance in all material respects by the ~~Depositor~~ Company of its obligations hereunder and to satisfaction, as of the Closing Date, of the following additional ~~conditions precedent~~conditions: (a) ~~The Prospectus and any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Company's knowledge, threatened; the ~~Depositor~~ Prospectus Supplement shall have been filed or ~~you, shall~~ transmitted for filing with the Commission in accordance with Rule 424 under the 1933 Act; and any Free Writing Prospectuses contemplated to be ~~contemplated~~ filed by the Company under Section 4(d) hereof shall have been filed or transmitted for filing with the Commission ~~or by any authority administering any state securities or blue sky law~~in accordance with Rule 433 under the 1933 Act, to the extent required to be filed thereunder. (b) On The Company shall have delivered to the Underwriters a certificate of the Company, signed by an authorized officer of the Company and dated the Closing Date, to the effect that: (i) the representations and warranties of the Company 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) the Company has 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~~, you~~ . (c) The Underwriters shall have received with respect to the Company a ~~letter~~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, to the effect that: (i) each individual who, as an officer or representative of the Company, signed this Agreement, the Pooling and Servicing Agreement, any of the Mortgage Loan Purchase Agreements or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein, in the Pooling and Servicing Agreement or in any of the Mortgage Loan Purchase Agreements, 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 ~~KPMG LLP~~such persons appearing on such documents and certificates are their genuine signatures; and (ii) no event (including, ~~certified public accountants~~without limitation, ~~substantially in~~ any act or omission on the ~~form~~ part of the ~~drafts~~ Company) has occurred since the date of the good standing certificate referred to ~~which you have previously agreed and otherwise~~ in ~~form and substance satisfactory to you and your counsel.~~ paragraph (c) ~~Subsequent to~~ above which has affected the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties good standing of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing Company under the laws of the State of ~~Michigan with full power~~ Delaware. Such certificate shall be accompanied by true and ~~authority to own its properties~~ complete copies (certified as such by the Secretary or an assistant secretary of the Company) of (i) the certificate of incorporation and ~~conduct its business~~ by-laws of the Company, as ~~presently conducted by it~~in effect on the Closing Date, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ the ~~laws~~ resolutions of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect any required shareholder consent relating to ~~creditors' rights and (y)~~ the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the ~~Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements. (~~such agreements~~e) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or special counsel for the Company, one or more favorable opinions, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters (taking into account comparable opinions rendered by such counsel on behalf of ~~any indenture or other material agreement or material instrument to which DCFS or~~ the Company ~~is a party or by which either of them is bound, or result~~ in ~~a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or~~ similar commercial mortgage securitization transactions involving the Company ~~of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them~~and LBI). (xf) ~~There are no actions~~The Underwriters shall have received copies of all legal opinion letters delivered by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood llp, ~~proceedings or investigations pending or~~special counsel for the Company, to the ~~best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting~~ Rating Agencies in connection with the ~~invalidity~~ issuance of the ~~Trust or~~ Certificates, accompanied in each case by a letter signed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood 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, in form and substance reasonably acceptable to the Underwriters (taking into account comparable opinions rendered by such counsel on behalf of the Company in similar commercial mortgage securitization transactions involving the Company and LBI). (h) The Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Company, a letter, dated the Closing Date, containing a statement substantially to the effect that, based on discussions with certain representatives of the Company, the Mortgage Loan Sellers, the Underwriters, the Trustee, the Master Servicer, the Special Servicer and their respective counsel, and (with limited exception) without having reviewed any of the ~~Basic Documents~~mortgage notes, ~~(2) seeking~~ mortgages or other documents relating to ~~prevent~~ the ~~consummation of~~ Mortgage Loans, or any documents, records, agreements, ratings or portfolio data or any other information regarding the business or operations of the ~~transactions contemplated by any of~~ sponsors, the ~~Basic Documents~~ Trustee, the Master Servicer or the ~~execution and delivery thereof,~~ Special Servicer (~~3) that might materially and adversely affect~~ other than the ~~performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale~~ Pooling and Servicing Agreement), and without having made any independent check or verification of the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth statements contained in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the ~~Company is a party or by which either~~ Time of ~~them is bound~~Sale Information, ~~which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing~~ nothing has come to such counsel's attention that would lead ~~such counsel~~ it to believe that the Offering Prospectus, at the Time of Sale, or the Prospectus, at the date of the Prospectus Supplement or at the Closing Date, contained or contains 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, except that such counsel need not comment on (i) any financial, statistical or numerical data set forth or referred to therein or omitted therefrom, (ii) any information set forth on or omitted from any diskette, CD-ROM or other electronic media that may accompany the Prospectus, (iii) any documents or information incorporated therein by reference, or (iv) any Excluded Information contained therein or omitted therefrom. (i) The Underwriters shall have received from Deloitte & Touche LLP, certified public accountants, a letter dated the date of the Prospectus Supplement and satisfactory in form and substance to the Underwriters and their counsel, to the following effect: (i) 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 Time of Sale Information, 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; (ii) 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 (iii) they have compared the data contained in the data sheet or computer tape referred to in the immediately preceding clauses (i) and (ii) 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 and the Trustee, 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 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 parties to the Pooling and Servicing Agreement and on certificates furnished by public officials and, further, may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the 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, the laws of the jurisdiction of organization for the party on behalf of which such opinion is being rendered and the federal law of the United States. (xk) The Underwriters shall have been furnished with all documents, certificates and opinions required to be delivered by each Mortgage Loan Seller and/or any affiliate thereof in connection with the sale of Mortgage Loans by such Mortgage Loan Seller to the Company, pursuant to the related Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to rely on each such certificate executed and delivered by a Mortgage Loan Seller, any affiliate thereof or any of their respective officers and representatives, to the same extent that the Company ~~contained~~ may so rely, and each such opinion addressed to the Company shall also be addressed to the Underwriters. (l) The Underwriters shall have been furnished with such other documents and opinions as the Underwriters may reasonably require, for the purpose of enabling them to pass upon the issuance and sale of the Certificates as herein contemplated and related proceedings, or in order to evidence the ~~Purchase Agreement~~ accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained. (m) 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 ~~Trust Agreement are other than~~ conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as ~~stated therein or (y) DCFS contained~~ provided in this Agreement, if the ~~Trust Agreement, the Purchase Agreement~~ Company is in material breach of any covenants or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment agreements contained herein or if any of the ~~Receivables, all documents~~ opinions and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware certificates referred to ~~above, is necessary to perfect and maintain the interest~~ above or ~~the security interest of the Indenture Trustee~~ elsewhere in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase this Agreement ~~and the Administration Agreement conform~~ shall not be in all material respects ~~with~~ reasonably satisfactory in form and substance to the ~~descriptions thereof contained in the Prospectus (~~Underwriters and ~~any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles"~~ their counsel, this Agreement and ~~"-- Insolvency~~ all obligations of the ~~Depositor May Result in Delays~~Underwriters hereunder may be cancelled at, ~~Reductions~~ or ~~Loss~~ at any time prior to, the Closing Date by the Underwriters. Notice of ~~Payments to Securityholders" and "Certain Legal Aspects of the Receivables",~~ such cancellation shall be given to the ~~extent they constitute matters of law~~ Company in writing, or ~~legal conclusions with respect thereto, have been reviewed~~ by ~~such counsel and are correct~~ telephone or telegraph confirmed in ~~all material respects~~writing. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 1 contract

Sources: Underwriting Agreement (LB-UBS Commercial Mortgage Trust 2007-C7)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and JPMCB contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and JPMCB shall have ~~received~~ delivered to you a ~~letter~~certificate of JPMCB, signed by an authorized officer of JPMCB and dated the Closing Date, to the effect that: (i) the representations and warranties of JPMCB 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifJPMCB has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to JPMCB, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of JPMCB, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of JPMCB, 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 JPMCB) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of JPMCB 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 JPMCB) of the articles of association and by-laws of JPMCB, as in effect on the Closing Date, and of the resolutions of JPMCB and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to JPMCB, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from the Accountants copies of the Accountants’ Due Diligence Reports and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the effect ~~that: (i) DCFS has been duly organized and is validly existing~~ that the Accountants have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which it has determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the respective compilations of information and data regarding the Mortgage Loans prepared by or on behalf of the Mortgage Loan Sellers and provided to the Accountants (such compilations, the “Master Tapes”), unless non-material deviations are otherwise noted in such letter; and (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Certificate Administrator and the Trustee, in his or her individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Certificate Administrator and ~~are~~ Trustee” in the Prospectus is true and correct in all material respects. (~~xix~~l) You shall have received from an officer of the Master Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The ~~statements contained~~ Master Servicer” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Primary Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Primary Servicer under the heading “Transaction Parties—The Primary Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of an officer of the Operating Advisor and Asset Representations Reviewer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of each Third Party Purchaser, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to such Third Party Purchaser under the heading “Credit Risk Retention—Third Party Purchasers” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, each Third Party Purchaser, the Master Servicer, the Special Servicer, the Primary Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator, a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank5 2026-5yr21)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of BSP and Basis, BSPRT and Basis Investment, respectively) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (A) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 (B) no event (including, without limitation, any act or omission on the part of ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2018-C48)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and [_____] shall have ~~received~~ delivered to you a ~~letter~~certificate of [_____], signed by an authorized officer of [_____] and dated the Closing Date, to the effect that: (i) the representations and warranties of [_____] 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if[_____] has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to [_____], a [_____] and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the limited liability company agreement of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of [_____], in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of [_____], 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 [_____]) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of [_____] 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 [_____]) of the certificate of formation and operating agreement of [_____], as in effect on the Closing Date, and of the written consent of the sole member of [_____] relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to [_____], one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-▇, ▇-▇ and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet [and (D) the Supplement][INCLUDE BRACKETED LANGUAGE ONLY IF A SUPPLEMENT TO PRELIMINARY PROSPECTUS WAS FILED PRIOR TO THE DATE OF THE UNDERWRITING AGREEMENT] agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus, is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor” in the Prospectus, is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator and the Asset Representations Reviewer a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (LMF Commercial Mortgage Securities, LLC)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of each Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator (r) a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (u) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2017-Rb1)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the ~~Offered Notes~~ Certificates subject to this Agreement will be subject to the accuracy of the representations and warranties on the part of the Depositor ~~herein~~as of the date hereof and the Specified Delivery Date, to the accuracy of the statements ~~of officers~~ of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor in all material respects of its obligations hereunder and to the following additional conditions precedent: (a) ~~The Prospectus~~ you shall have received a letter from PricewaterhouseCoopers LLP dated the date hereof and, if requested by you, dated the Specified Delivery Date, each in the forms heretofore agreed to; (b) all actions required to be taken and ~~any supplements thereto~~ all filings required to be made by the Depositor under the 1933 Act prior to the Specified Delivery Date shall have been ~~filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof,~~ duly taken or made; and prior to the ~~Closing~~ Specified Delivery 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~~instituted, or to the knowledge of the Depositor or ~~you~~any Underwriter, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law. (b) On or prior to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel.Commission; (c) ~~Subsequent~~ unless otherwise specified in Schedule I, the Certificates subject to ~~the execution and delivery of~~ this Agreement ~~or, if earlier, the dates as~~ and offered by means of ~~which information is given in~~ the Registration Statement ~~(exclusive of any amendment thereto)~~ shall be rated the ratings specified in Schedule I, and ~~the Prospectus (exclusive of any supplement thereto), there~~ shall not have ~~occurred (i) any change~~ been lowered or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor placed on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed credit watch with ~~completion of the sale of and payment~~ a negative implication for ~~the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States.~~downgrade; (d) ~~You~~ you shall have received an opinion of ~~in-house~~ counsel to the guarantor, Credit Suisse acting through Credit Suisse (USA), Inc., dated the Specified Delivery Date, and in the ~~office~~ form agreed to on or prior to such date; (e) you shall have received opinions of Cadwalader, Wickersham & Taft LLP, special counsel to the ~~General Counsel~~ Depositor and Credit Su▇▇▇▇ ▇▇▇▇▇iti▇▇ (USA) LLC, dated the Specified Delivery Date, in substantially the form agreed to on or prior to such date; (f) you shall have received an opinion of ~~DCFS and~~ special counsel to each Mortgage Loan Seller, dated the ~~Company~~Specified Delivery Date, ~~addressed~~ in the form agreed to on or prior to such date; (g) you ~~and~~ shall have received an opinion of counsel to the ~~Indenture~~ Trustee, dated the ~~Closing Date~~ Specified Delivery Date, in the form agreed to on or prior to such date, together with a reliance letter addressed to the Rating Agencies and ~~satisfactory~~ the Depositor; (h) you shall have received an opinion of counsel of the Master Servicer, dated the Specified Delivery Date, in the form ~~and substance~~ agreed to on or prior to such date; (i) you ~~and your counsel~~shall have received an opinion of counsel of the Special Servicer, dated the Specified Delivery Date, in the form agreed to on or prior to such date; (j) you shall have received letters, dated the Specified Delivery Date, from counsel rendering opinions to the Rating Agencies, to the effect ~~that:~~that you may rely upon their opinion to such Rating Agencies, as if such opinion were rendered to you, or such opinions shall be addressed to you; (ik) ~~DCFS has been duly organized and is validly existing as~~ you shall have received a ~~limited liability company in good standing under the laws~~ certificate or certificates signed by such of the ~~State~~ principal executive, financial and accounting officers of ~~Michigan with full power and authority~~ the Depositor as you may request, dated the Specified Delivery Date, in the form agreed to ~~own its properties and conduct its business as presently conducted by it, and~~ on or prior to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.such date; (iil) ~~The Company has been duly organized and is validly existing as~~ you shall have received a ~~limited liability company in good standing under the laws~~ certificate of the ~~State~~ Trustee, signed by one or more duly authorized officers of ~~Michigan with full power and authority~~ the Trustee, dated the Specified Delivery Date, in the form agreed to ~~own its properties and conduct its business as presently conducted by it and~~ on or prior to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments.such date; (~~iii~~m) ~~Each~~ you shall have received a certificate of ~~DCFS and~~ the ~~Company is~~ Master Servicer, signed by one or more duly ~~qualified to do business and is in good standing~~authorized officers of the Master Servicer, ~~and has obtained all necessary licenses and approvals~~dated the Specified Delivery Date, in ~~each jurisdiction in which failure~~ the form agreed to ~~qualify~~ on or prior to ~~obtain~~ such ~~licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee.~~date; (ivn) ~~The direction~~ you shall have received a certificate of the Special Servicer, signed by one or more duly authorized officers of the Special Servicer, dated the Specified Delivery Date, in the form agreed to on or prior to such date; (o) the Mortgage Loan Sellers shall have sold the Mortgage Loans to the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the ~~Indenture, nor the execution and delivery of this Agreement, the~~ Mortgage Loan Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them.Agreements; and (xp) ~~There are no actions~~you shall have received such other documents, ~~proceedings or investigations pending or~~certificates, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution letters and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreementopinions as you may reasonably request. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 1 contract

Sources: Underwriting Agreement (Credit Suisse Commercial Mortgage Trust Series 2006-C5)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and Barclays Holdings contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and in the case of Barclays, Barclays Holdings to the same extent as Barclays) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and Barclays Holdings shall have ~~received~~ delivered to you a ~~letter~~certificate of Barclays Holdings, signed by an authorized officer of Barclays Holdings and dated the Closing Date, to the effect that: (i) the representations and warranties of Barclays Holdings 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifBarclays Holdings has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received with respect to Barclays Holdings and the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of formation and limited liability company agreement of the Depositor, as in effect on the Closing Date, and (ii) you shall have received from the Secretary or an Assistant Secretary of Barclays Holdings, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (A) each individual who, as an officer or representative of Barclays Holdings, 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 (B) no event (including, without limitation, any act or omission on the part of Barclays Holdings) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of Barclays Holdings under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of Barclays Holdings) of the certificate of incorporation, by-laws or similar organizational documents of Barclays Holdings, as in effect on the Closing Date, and of the resolutions of Barclays Holdings. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to Barclays Holdings, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee and ~~are~~ the Certificate Administrator” in the Prospectus is true and correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Trustee and the Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer and the Special Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Primary Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Primary Servicer under the heading “Transaction Parties—The Primary Servicer” (but excluding the information under the heading “—Summary of the KeyBank Primary Servicing Agreement”) in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Master Servicer and the Special Servicer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (r) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Third Party Purchaser, the Master Servicer, the Primary Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator, a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (u) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (BBCMS Mortgage Trust 2019-C3)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of BSPRT, FBSPRT) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from the Accounting Firms copies of the Accountants’ Due Diligence Reports and from Deloitte letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the effect ~~that: (i) DCFS~~ that Deloitte has ~~been duly organized and is validly existing~~ performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which it has determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the respective compilations of information and data regarding the Mortgage Loans prepared by or on behalf of the Mortgage Loan Sellers and provided to Deloitte (such compilations, the “Master Tapes”), unless non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his or her individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Operating Advisor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Asset Representations Reviewer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2026-5c10)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and Société Générale shall have ~~received~~ delivered to you a ~~letter~~certificate of Société Générale, signed by an authorized officer of Société Générale and dated the Closing Date, to the effect that: (i) the representations and warranties of Société Générale 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifSociété Générale has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to Société Générale, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of formation or the limited liability company agreement of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of Société Générale, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of Société Générale, 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 Société Générale) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of Société Générale 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 Société Générale) of Société Générale’s organizational documents and by-laws, as in effect on the Closing Date. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to Société Générale, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountant’s Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-▇, ▇-▇ and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet [and (D) the Supplement][INCLUDE BRACKETED LANGUAGE ONLY IF A SUPPLEMENT TO PRELIMINARY PROSPECTUS WAS FILED PRIOR TO THE DATE OF THE UNDERWRITING AGREEMENT] agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Underwritten Certificates on the Closing Date are as described in Section 1(a)(xv) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus, is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor” in the Prospectus, is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Operating Advisor, the Trustee, the Certificate Administrator and the Asset Representations Reviewer a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Underwritten Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (SG Commercial Mortgage Securities, LLC)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and W▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and W▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of W▇▇▇▇ Fargo Bank, signed by an authorized officer of W▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of W▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifW▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to W▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of W▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of W▇▇▇▇ Fargo Bank, 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 W▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of W▇▇▇▇ Fargo Bank 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 W▇▇▇▇ Fargo Bank) of the articles of association and by-laws of W▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of W▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to W▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from the Accounting Firms copies of the Accountants’ Due Diligence Reports and from Deloitte letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the effect ~~that: (i) DCFS~~ that Deloitte has ~~been duly organized and is validly existing~~ performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which it has determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the respective compilations of information and data regarding the Mortgage Loans prepared by or on behalf of the Mortgage Loan Sellers and provided to Deloitte (such compilations, the “Master Tapes”), unless non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Certificate Administrator and ~~are~~ Trustee” in the Prospectus is true and correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator and Trustee” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Primary Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Primary Servicer under the heading “Transaction Parties—The Primary Servicer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (r) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Third Party Purchaser, the Master Servicer, the Special Servicer, the Primary Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (u) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank5 2023-5yr4)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of LCF, the LC Guarantors) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes ▇-▇, ▇-▇ and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Third-Party Purchaser, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2018-C47)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties on the part of the Depositor herein, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions precedent: (a) The Prospectus and any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to 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 Depositor or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law. (b) On or prior to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.of

Appears in 1 contract

Sources: Underwriting Agreement (DaimlerChrysler Auto Trust 2006-B)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the ~~Depositor herein~~Company contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the ~~Depositor~~ Company made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the ~~Depositor~~ Company of its obligations ~~hereunder~~ hereunder; and to (iv) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Company's knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act. (b) On You shall have received from Dechert LLP, counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (i) The Company shall have delivered to you a certificate of the Company, signed by an authorized officer of the Company and dated the Closing Date, to the effect that: (A) the representations and warranties of the Company 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 (B) the Company has 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~~, you~~ ; and (ii) Wachovia shall have ~~received~~ delivered to you a ~~letter~~certificate of Wachovia, signed by an authorized officer of Wachovia and dated ~~as of~~ the Closing Date, of ~~KPMG LLP~~the President, ~~certified public accountants~~a Senior Vice ▇▇▇▇▇▇▇▇t or a Vice President of Wachovia, ~~substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent~~ to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred effect that: (i) ~~any change or any development involving a prospective change~~ the representations and warranties of Wachovia in ~~or affecting particularly the business or properties~~ this Agreement are true and correct in all material respects at and as of the ~~Trust,~~ Closing Date with the ~~Depositor,~~ same effect as if made on the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered NotesClosing Date; and (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifWachovia has, in all material respects, complied with all the ~~judgment of~~ agreeme▇▇▇ ▇▇▇ satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received ~~an opinion of in-house counsel in the office~~ (i) with respect to Wachovia, a certificate of the ~~General Counsel~~ Office of ~~DCFS and~~ the Comptroller of the Curre▇▇▇ ▇▇▇ (ii) with respect to the 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, ~~addressed~~ in his individual capacity, a certificate, dated the Closing Date, to ~~you~~ the effect that: (x) each individual who, as an officer or representative of the Company, 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 ~~Indenture Trustee~~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 the Company) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof 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 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 the Closing Date, and of the resolutions of the Company and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of Wachovia, in his individual capacity, 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 Section 6(d) hereof 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 counsel for the Company, one or more f▇▇▇▇▇▇▇▇ ▇pin▇▇▇▇, dated the Closing Date and satisfactory in form and substance to you and ~~your counsel,~~ counsel for the Underwriters substantially to the effect that: (i) ~~DCFS has been duly organized and~~ The Company is ~~validly existing as~~ a ~~limited liability company~~ corporation in good standing under the laws of the State of ~~Michigan with full~~ North Carolina and has the corporate power and authority ~~to own its properties and conduct its business as presently conducted by it, and~~ to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ Neither the ~~laws~~ sale of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the CompanyUnderwritten Certificates, nor the consummation of any other of the transactions contemplated in ~~this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement~~ or ~~the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor~~ the fulfillment of the terms ~~thereof by DCFS, the Company or the Trust, as the case may be~~of this Agreement, will conflict ~~with,~~ with or result in a ~~material breach,~~ breach or violation of any term or ~~acceleration~~ provision of, or constitute a default (or an event which with the passing of time or notification, or both, would constitute a default) under, ~~any term or provision of~~ the articles of ~~organization~~ incorporation or ~~operating agreement~~ by laws of ~~DCFS or~~ the Company, or or, to the knowledge of such counsel, any indenture or other ~~material~~ agreement or ~~material~~ instrument to which ~~DCFS or~~ the Company is a party or by which ~~either of them~~ it is bound, ~~or result in a violation~~ or, to the knowledge of ~~or contravene the terms~~ such counsel, any order of any ~~statute, order~~ State of North Carolina or ~~regulation applicable to DCFS or the Company of any~~ federal court, regulatory body, administrative agency or governmental body having jurisdiction over ~~either of them~~the Company. (xiii) ~~There~~ To the knowledge of such counsel, there are no actions, proceedings or investigations pending ~~or, to the best of such counsel's knowledge after due inquiry,~~ before or threatened ~~before~~ by any court, administrative agency or other tribunal to which the Company is a party or of which any of its properties is the subject (1a) asserting the invalidity of ~~the Trust or any of the Basic Documents~~this Agreement, (2b) seeking to prevent the consummation by the Company of any of the transactions contemplated by ~~any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of,~~ this Agreement, as the ~~Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement,~~ case may be or (4c) ~~that~~ 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; (iv) This Agreement has been duly authorized, executed and delivered by the Company. Each of the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements has been duly authorized, executed and delivered by the Company. (v) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by 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. (vi) The statements in the Time of Sale Information and the Prospectus under the headings "ERISA CONSIDERATIONS" and "MATERIAL FEDERAL INCOME TAX CONSEQUENCES", to the extent that they describe certain matters of federal law or legal conclusions with respect thereto, provide a fair and accurate summary of such matters and conclusions; (vii) As described in the Prospectus Supplement and assuming compliance with the provisions of the Pooling and Servicing Agreement, (a) REMIC I and REMIC II will each qualify as a REMIC within the meaning of Sections 860A through 860G (the "REMIC Provisions") of the Internal Revenue Code of 1986, as amended (the "Code"); (b) the 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 and (c) the portion of the Trust Fund consisting of the Class A-MFL Regular Interest, the Swap Contract and the Floating Rate Account will be treated as a grantor trust for federal income tax purposes under subpart E, Part I of subchapter J of the Code; (viii) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund created by the Pooling and Servicing Agreement is not required to be registered under the Investment Company Act; (ix) Each of the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement constitutes the legal, valid and binding agreement of the Company, enforceable against the Company 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; (x) The 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; (xi) To The Registration Statement, as of its effective date, and the ~~best knowledge~~ Prospectus, as of ~~such counsel~~ the date thereof (in each case, with the exception of any information incorporated by reference therein, any numerical, financial, statistical and ~~except as set forth in the Prospectus (~~quantitative data included therein, any Mortgage Loan Seller Covered Information, any Master Servicer Covered Information, any Special Servicer Covered Information and any ~~supplement thereto~~Trustee Covered Information), ~~no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default~~ appeared on their respective faces to be appropriately responsive in all material respects to the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties requirements of the ~~Depositor~~ 1933 Act and ~~its subsidiaries, taken~~ the rules and regulations thereunder applicable to such documents as ~~a whole.~~of the relevant date; (xii) ~~Nothing~~ The statements contained in the Time of Sale Information and the 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 (xiii) 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 and on certificates furnished by public officials. Such opinions may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto. Such opinion may be qualified as an opinion only on the laws of the State of New York, the laws of the State of North Carolina and the federal law of the United States of America. In one or more separate letters addressed only to the Underwriters, Cadwalader, Wickersham & Taft LLP shall additionally state that, based on confere▇▇▇▇ ▇▇▇ ▇ele▇▇▇▇e conversations with representatives of Wachovia, Column, Artesia, the Underwriters, the Company, the Trustee, the Master Servicer, the Special Servicer and their respective counsel, and (with limited exception) without having reviewed any of the mortgage notes, mortgages or other documents relating to the Mortgage Loans or made any inquiry of any originator of any Mortgage Loan, nothing has come to such counsel's attention that would lead ~~such counsel~~ it to believe that ~~the representations and warranties of~~ (xi) the ~~Company~~ Prospectus (other than any financial, numerical, statistical or quantitative information included therein, any Mortgage Loan Seller Covered Information, any Master Servicer Covered Information, any Special Servicer Covered Information and any Trustee Covered Information), at the date of the Prospectus Supplement or at the 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 the ~~Purchase Agreement and~~ light of the ~~Trust Agreement are~~ circumstances under which they were made, not misleading, (ii) the Time of Sale Information (other than as any financial, numerical, statistical or quantitative information included therein, any Mortgage Loan Seller Covered Information, any Master Servicer Covered Information, any Special Servicer Covered Information and any Trustee Covered Information), at the Time of Sale, 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 (iii) 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 ~~(y) DCFS contained~~ necessary in ~~this Agreement,~~ order to make the ~~Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein~~statements therein not misleading. (~~xiii~~g) ~~The Depositor~~ You shall have received from Lars A. Carlsten, counsel for Wachovia, a favorable opinion, dated th▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇nd satisfactor▇ ▇▇ ▇▇▇m and substance to you and counsel for the Underwriters, to the effect that: (i) Wachovia is a national banking association validly existing under the ~~sole owner~~ laws of ~~all right, title and interest in,~~ the United States of America and has ~~good~~ the corporate power and ~~marketable title to, the Receivables~~ authority to enter into and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing perform its obligations under this Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (~~xiv~~ii) ~~Immediately prior to~~ This Agreement has been duly authorized, executed and delivered by Wachovia. (iii) No consent, approval, authorization or o▇▇▇▇ ▇▇ any state or federal court or governmental agency or body is required for the consummation by Wachovia 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 ~~Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables~~ Mortgage Loans and the ~~proceeds of each of~~ other matters contemplated under the ~~foregoing was perfected and constituted a perfected first priority interest therein~~Mortgage Loan Purchase Agreements. (xviv) The ~~Indenture constitutes~~ fulfillment of the terms of this Agreement will not conflict with or result in a ~~grant by~~ breach or violation of any term or provision of, or constitute a default (or an event which with the ~~Trust to the Indenture Trustee~~ passing of time or notification, or both, would constitute a ~~valid security interest in the Receivables~~default) under, the ~~security interests in the Financed Vehicles securing the Receivables and the proceeds~~ articles of ~~each~~ association or by laws of ~~the foregoing~~Wachovia or, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing to such counsel's knowledge, any indenture or other ~~action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred~~ agreement or instrument to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.which

Appears in 1 contract

Sources: Underwriting Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C30)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and Barclays Holdings contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and (a) in the case of Barclays, Barclays Holdings to the same extent as Barclays, (b) in the case of SGFC, Société Générale to the same extent as SGFC and (c) in the case of BSPRTCF, FBSPRT to the same extent as BSPRTCF) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and Barclays Holdings shall have ~~received~~ delivered to you a ~~letter~~certificate of Barclays Holdings, signed by an authorized officer of Barclays Holdings and dated the Closing Date, to the effect that: (i) the representations and warranties of Barclays Holdings 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifBarclays Holdings has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received with respect to Barclays Holdings and the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in their individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of formation and limited liability company agreement of the Depositor, as in effect on the Closing Date, and (ii) you shall have received from the Secretary or an Assistant Secretary of Barclays Holdings, in their individual capacity, a certificate, dated the Closing Date, to the effect that: (A) each individual who, as an officer or representative of Barclays Holdings, 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 (B) no event (including, without limitation, any act or omission on the part of Barclays Holdings) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of Barclays Holdings under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of Barclays Holdings) of the certificate of incorporation, by-laws or similar organizational documents of Barclays Holdings, as in effect on the Closing Date, and of the resolutions of Barclays Holdings. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to Barclays Holdings, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in their individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Certificate Administrator and ~~are~~ Trustee” in the Prospectus is true and correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator and Trustee” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Primary Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Primary Servicer under the heading “Transaction Parties—The Primary Servicer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Affiliated Special Servicer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Affiliated Special Servicer under the heading “Transaction Parties—The Affiliated Special Servicer” in the Prospectus is true and correct in all material respects. (q) You shall have received from an officer of the Third Party Purchaser, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Third Party Purchaser under the heading “Credit Risk Retention—The Third Party Purchaser” in the Prospectus is true and correct in all material respects. (r) You shall have received from an officer of the Operating Advisor, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (s) You shall have received from an officer of the Asset Representations Reviewer, in their individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (t) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Third Party Purchaser, the Master Servicer, the Special Servicer, the Primary Servicer, the Affiliated Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator, a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (u) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (v) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (w) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (BBCMS Mortgage Trust 2023-C22)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to ~~purchase and pay for~~ such Designated Securities shall be subject, in the ~~Offered Notes will be subject~~ discretion of the Representatives, to the ~~accuracy of the~~ condition that all representations and warranties ~~on the part~~ and other statements of the ~~Depositor herein~~Company in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, ~~to the accuracy~~ at and as of the ~~statements~~ Time of ~~officers of~~ Delivery for such Designated Securities, true and correct in all material respects, the ~~Depositor made pursuant to~~ condition that the ~~provisions hereof, to the performance by the Depositor~~ Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and to the following additional ~~conditions precedent~~conditions: (a) The Prospectus ~~and any supplements thereto~~ in relation to the applicable Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with ~~the Rules and Regulations and~~ Section ~~7(a~~5(a) hereof; each Issuer Free Writing Prospectus shall have been filed with the Commission pursuant to Rule 433 within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction. (b) Counsel for the Underwriters shall have furnished to the Representatives such opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the incorporation of the Company, the validity of the Indenture, the Designated Securities, the Registration Statement, the Prospectus as amended or supplemented, the Time of Sale Information and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. (c) The General Counsel of the Company, or other counsel for the Company satisfactory to the Representatives, shall have furnished to the Representatives such counsel’s written opinion, dated the Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, to the effect that: (i) The Company and each Principal Subsidiary has been duly incorporated and each is validly existing as a corporation or other entity under the laws of its jurisdiction of incorporation, has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business in all material respects as it is currently being conducted and as described in the Prospectus and the Time of Sale Information; the Company is in good standing under the laws of its jurisdiction of incorporation and is duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction listed in an exhibit to such opinion; (ii) This Agreement and the Pricing Agreement with respect to the Designated Securities have been duly authorized, executed and delivered by the Company; (iii) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject, other than as set forth in the Prospectus and the Time of Sale Information and other than those which individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect; and, to the best of such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities; (iv) The Designated Securities have been duly authorized by the Company; assuming (a) that they have been duly signed by the manual or facsimile signatures of officers (specified in such opinion) of the Company (provided that counsel shall not make the assumption in this clause (a) with respect to Designated Securities that are global securities), and (b) that the Designated Securities have been duly authenticated by the Trustee under the Indenture, the Designated Securities have been duly executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and are enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other relating to or affecting the enforcement of creditors’ rights generally; and the Designated Securities and the Indenture conform to the descriptions thereof in the Prospectus and the Time of Sale Information; (v) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other relating to or affecting the enforcement of creditors’ rights generally; the Indenture has been duly qualified under the Trust Indenture Act; (vi) The statements set forth in the Prospectus and the Time of Sale Information under the captions “Description of Notes” and “Description of Debt Securities” (or similar headings referring to the Designated Securities), insofar as they purport to constitute a summary of the terms of the Securities and under the caption “Underwriting,” insofar as they purport to describe the provisions of the documents referred to therein, are accurate summaries of the material terms thereof; (vii) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, this Agreement and the Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute or result in a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other similar agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, other than such as would not reasonably be expected to have a Material Adverse Effect or affect the validity of the Designated Securities or the legal authority of the Company to comply with the Designated Securities, the Indenture, this Agreement or the Pricing Agreement; nor will such actions result in a violation of the provisions of the Certificate of Incorporation, as amended, or the By-laws of the Company; nor will any such action result in a violation of any statute or any order, rule or regulation of any court or governmental agency or body in the United States having jurisdiction over the Company or any of its subsidiaries or any of their properties other than such as would not reasonably be expected to have a Material Adverse Effect or affect the validity of the Designated Securities or the legal authority of the Company to comply with the Designated Securities, the Indenture, this Agreement or the Pricing Agreement (except to the extent that the issue and sale of the Designated Securities as contemplated by this Agreement and the Pricing Agreement and the distribution of the Designated Securities by the Underwriters may result in violations of state securities or Blue Sky laws); and except as set forth in the Registration Statement or the Prospectus, no consent, approval, authorization, order, registration or qualification of or with any court or any such regulatory authority or other governmental body in the United States having jurisdiction over the Company is required for the issue and sale of the Designated Securities or the consummation by the Company of the other transactions contemplated by this Agreement or the Pricing Agreement or the Indenture, except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters; (viii) The 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 became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; (ix) The Registration Statement and the Prospectus as amended or supplemented and any further amendments and supplements thereto made by the Company prior to the ~~Closing Date~~Time of Delivery for the Designated Securities (other than the financial statements and other financial data contained or incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion) appear on their face to be appropriately responsive in all material respects with the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations thereunder; and the information included in the Registration Statement in response to Item 10 (insofar as it relates to such counsel) of Form S-3 is to the best of such counsel’s knowledge an accurate statement of the matter therein set forth and fairly presents the information called for with respect to that matter by the Securities Act and the rules and regulations thereunder; (x) The Registration Statement has been declared effective under the Securities Act; any required filing of the Prospectus pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by Rule 424(b) under the Securities Act, any required filing of any Issuer Free Writing Prospectus pursuant to Rule 433 under the Securities Act has been made in the manner and within the time period required by Rule 433 and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~shall have~~ has been issued under the Securities Act and no proceedings for that purpose ~~shall~~ or pursuant to Section 8A of the Securities Act have been ~~instituted or~~initiated or are pending or threatened by the Commission; and (xi) The Company is not and, after giving effect to the ~~knowledge~~ offering and sale of the ~~Depositor~~ Securities and the application of the proceeds thereof as described in the Registration Statement, the Prospectus and the Time of Sale Information, will not be an “investment company” or ~~you~~an entity “controlled” by an “investment company” within the meaning of the Investment Company Act. Such counsel may also state that such counsel has not verified, and is not passing upon and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Prospectus or the Time of Sale Information, or any amendment or supplement thereto, other than those mentioned in subparagraph (viii) above, but such counsel shall ~~be contemplated~~ confirm that such counsel has, however, participated in reviews and discussions in connection with the preparation of the Registration Statement, the Prospectus and the Time of Sale Information, or any amendment or supplement thereto, and any further amendments and supplements thereto made by the ~~Commission~~ Company prior to the Time of Delivery, and (A) that the Registration Statement or any post-effective amendment thereto, at the time the Registration Statement or any post-effective amendment thereto (including the filing of the Company’s Annual Report on Form 10-K with the Commission) became effective, contained any 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, (B) that the Prospectus includes 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 (C) that the Time of Sale Information, at the Time of Sale, included an 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; provided that such counsel need not express any belief as to the financial statements and supporting schedules and other financial data included in the Registration Statement, the Prospectus and the Time of Sale Information or omitted therefrom or as to the Trustee’s Statement of Eligibility on Form T-1 and such counsel does not know of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by ~~any authority administering any state securities~~ reference in the Prospectus or ~~blue sky law~~required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required. In rendering the foregoing opinion, such counsel may rely upon opinions of local counsel (which may include counsel for the Representatives) satisfactory in form and scope to counsel for the Representatives. (bd) ~~On or prior to~~ At the ~~Closing Date~~date hereof and at the Time of Delivery, ~~you~~ the Representatives shall have received from Deloitte & Touche LLP a ~~letter~~letter dated such date, ~~dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise~~ in form and substance satisfactory to ~~you~~ the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and ~~your counsel~~information of the type referred to in AICPA Statement on Auditing Standards No. 72 (or any successor standard thereto). (ce) ~~Subsequent to~~ Since the ~~execution and delivery of this Agreement or, if earlier, the~~ respective dates as of which information is given in the ~~Registration Statement~~ Prospectus (~~exclusive~~ including any amendments or supplements prior to the execution of ~~any amendment thereto~~the Pricing Agreement relating to the Designated Securities) and the ~~Prospectus (exclusive~~ Time of ~~any supplement thereto)~~Sale Information, there shall not have ~~occurred~~ been any material decrease in the outstanding capital stock (i) other than changes in treasury stock within limits, or pursuant to employee plans, disclosed or incorporated by reference in the Prospectus and the Time of Sale Information), or any ~~change~~ material increase in the long-term debt of the Company and its subsidiaries considered as a whole, or any material adverse change, or any development involving a prospective ~~change~~ material adverse change, in or affecting ~~particularly~~ the ~~business~~ business, financial position, shareowners’ equity or ~~properties~~ results of operations of the ~~Trust~~Company and its subsidiaries considered as a whole, otherwise than as set forth or contemplated in the Prospectus and the Time of Sale Information (including the documents incorporated by reference therein), the ~~Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which~~effect of which is, in the judgment of the ~~Underwriters~~Representatives, ~~materially impairs the investment quality of the Offered Notes or makes~~ so material and adverse as to make it ~~impractical~~ impracticable or inadvisable to ~~market~~ proceed with the ~~Offered Notes; (ii) any suspension~~ public offering or ~~limitation~~ the delivery of ~~trading in securities generally~~ the Designated Securities on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or terms and in the ~~over-the-counter market;~~ manner contemplated by this Agreement, the Prospectus and the Time of Sale Information. (ivf) ~~any banking moratorium declared by federal~~ On or ~~New York authorities;~~ after the earlier of (vA) ~~any outbreak or escalation~~ the Time of ~~major hostilities~~ Sale and (B) the execution of the Pricing Agreement relating to the Designated Securities no downgrading shall have occurred in ~~which~~ the ~~United States is involved, any declaration of war by Congress~~ rating accorded the Securities or any other ~~substantial national~~ debt securities or ~~international calamity~~ preferred stock of or ~~emergency~~ guaranteed by the Company by Fitch Inc., ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (g) On or after the earlier of (A) the Time of Sale and (B) the execution of the Pricing Agreement relating to the Designated Securities there shall not have occurred any ~~change in~~ of the following events, the effect of which on the financial markets ifin each case, in the judgment of the ~~Underwriters~~Representatives, ~~the effect of any~~ is such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by make it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.imprac

Appears in 1 contract

Sources: Underwriting Agreement (Monsanto Co /New/)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and BANA contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and BANA shall have ~~received~~ delivered to you a ~~letter~~certificate of BANA, signed by an authorized officer of BANA and dated the Closing Date, to the effect that: (i) the representations and warranties of BANA 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifBANA has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to BANA, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor, a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of BANA, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of BANA, 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 BANA) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of BANA 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 BANA) of the articles of association and by-laws of BANA, as in effect on the Closing Date, and of the resolutions of BANA and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to BANA, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Reports and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes ▇-▇, ▇-▇ and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the General Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the heading “Transaction Parties—The Master Servicers—▇▇▇▇▇ Fargo Bank, National Association” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the General Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Special Servicer under the heading “Transaction Parties—The Special Servicers— LNR Partners, LLC” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the NCB Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Master Servicer under the heading “Transaction Parties—The Master Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the NCB Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Special Servicer under the heading “Transaction Parties—The Special Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. (q) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (r) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (s) You shall have received from an officer of the Outside Custodian, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Outside Custodian under the heading “Transaction Parties—The Outside Custodian” in the Prospectus is true and correct in all material respects. (t) You shall have received from an officer of the Excluded Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Excluded Special Servicer under the heading “Transaction Parties—The Special Servicers—The BXP Trust 2021-601L Special Servicer, the CAMB 2021-CX2 Special Servicer and the Marketplace at the Outlets Special Servicer” in the Prospectus is true and correct in all material respects. (u) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Excluded Special Servicer, the Outside Custodian, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (v) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (w) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (x) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank 2022-Bnk39)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of Basis, Basis Investment) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of each Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes ▇-▇, ▇-▇ and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and ~~any supplement thereto~~ correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the General Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the heading “Transaction Parties—The Master Servicers—▇▇▇▇▇ Fargo Bank, National Association” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the General Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Special Servicer under the heading “Transaction Parties—The Special Servicers—Rialto Capital Advisors, LLC” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the NCB Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Servicer under the headings ~~"Payments on~~ “Transaction Parties—The Master Servicers—National Cooperative Bank, N.A.” and “Transaction Parties—The Special Servicers—National Cooperative Bank, N.A.” in the ~~Notes", "Payments on~~ Prospectus is true and correct in all material respects. (p) You shall have received from the ~~Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ Secretary or an Assistant Secretary of the ~~Notes~~Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and the Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and the Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (r) You shall have received from counsel for each Mortgage Loan Seller, the ~~Indenture~~General Master Servicer, the ~~Administration~~ General Special Servicer, the NCB Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (u) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the 1934 Act to the satisfaction of the Underwriters. 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 ~~Purchase Agreement~~Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2016-C32)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; and to (iv) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Depositor’s knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and W▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of W▇▇▇▇ Fargo Bank, signed by an authorized officer of W▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of W▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifW▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to W▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of W▇▇▇▇ Fargo Bank, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of W▇▇▇▇ Fargo Bank, 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 W▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of W▇▇▇▇ Fargo Bank 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 W▇▇▇▇ Fargo Bank) of the articles of association and by-laws of W▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of W▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel in or special counsel for the ~~office of the General Counsel of DCFS and the Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to W▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company~~ result of which they have determined that the information of an accounting, financial or statistical nature set forth in ~~good standing~~ the Preliminary FWP and Prospectus Supplement under the ~~laws~~ captions “Summary”, “Description of the ~~State~~ Mortgage Pool” and “Yield and Maturity Considerations” and on Annexes A-1, A-2 and A-3 to each of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement,~~ the ~~Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement,~~ Prospectus Supplement and the ~~Administration Agreement~~Preliminary FWP and in the Pre-Pricing FWP and Second Pre-Pricing FWP and the Term Sheet agrees with the Master Tapes prepared by or on behalf of the Mortgage Loan Sellers, ~~and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.~~unless non-material deviations are otherwise noted in such letter; and (ii) ~~The Company has been duly organized and is validly existing as a limited liability company~~ they have compared the data contained in ~~good standing under~~ the ~~laws~~ Master Tapes referred to in the immediately preceding clause (i) to information contained in an agreed upon sampling of the ~~State of Michigan with full power~~ Mortgage Loan files and ~~authority to own its properties and conduct its business~~ in such other sources as ~~presently conducted~~ shall be specified by ~~it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement~~them, and ~~had at~~ found such data and information to be in agreement in all ~~times~~material respects, ~~and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments~~unless non-material deviations are otherwise noted in such letter. (~~iii~~j) ~~Each~~ You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Underwritten Certificates on the Closing Date are as described in Section 1(a)(xv) and that, as of ~~DCFS and~~ the ~~Company is duly qualified to do business and is~~ Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in ~~good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain~~ such ~~licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee~~ratings. (ivk) ~~The direction by~~ You shall have received from the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity Secretary or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion an Assistant Secretary of the ~~court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized~~Trustee, ~~executed and delivered by DCFS. (viii) The Purchase Agreement and~~ in his individual capacity, a certificate, dated the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending orClosing Date, to the ~~best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting~~ effect that the ~~invalidity of~~ information under the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth heading “Transaction Parties—The Trustee” in the Prospectus (Supplement is true and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator, Tax Administrator, Certificate Registrar and Custodian” in the Prospectus Supplement is true and ~~any supplement thereto~~ correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the General Master S▇▇▇▇▇▇▇, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the heading “Transaction Parties—The Master Servicers—W▇▇▇▇ Fargo Bank, National Association” in the Prospectus Supplement is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the General Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicers—Rialto Capital Advisors, LLC” in the Prospectus Supplement, is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the NCB Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the headings ~~"Payments on~~ “Transaction Parties—The Master Servicers—NCB, FSB” and “Transaction Parties—The Special Servicers—NCB, FSB” in the ~~Notes"~~Prospectus Supplement, ~~"Payments on~~ is true and correct in all material respects. (p) You shall have received from the ~~Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ Secretary or an Assistant Secretary of the ~~Notes~~Trust Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Trust Advisor under the heading “Transaction Parties—The Trust Advisor” in the Prospectus Supplement, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the ~~Indenture~~General Master Servicer, the ~~Administration Agreement~~General Special Servicer, the ~~Purchase Agreement~~NCB Servicer, the ~~Sale and Servicing Agreement~~ Trustee, the Certificate Administrator and the Trust Advisor, a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Underwritten Certificates, the transfer of the Mortgage Loans and any other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. 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, ~~constitute a fair summary~~ if the Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone or telegraph confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (WFRBS Commercial Mortgage Trust 2013-C16)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of Basis, Basis Investment) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Depositor’s knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1▇▇▇ ▇▇▇. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and W▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of W▇▇▇▇ Fargo Bank, signed by an authorized officer of W▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of W▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifW▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to W▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of W▇▇▇▇ Fargo Bank, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of W▇▇▇▇ Fargo Bank, 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 W▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of W▇▇▇▇ Fargo Bank 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 W▇▇▇▇ Fargo Bank) of the articles of association and by-laws of W▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of W▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to W▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company~~ result of which they have determined that the information of an accounting, financial or statistical nature set forth (A) in ~~good standing~~ the Preliminary FWP and Prospectus Supplement under the ~~laws~~ captions “Summary,” “Description of the ~~State~~ Mortgage Pool” and “Yield and Maturity Considerations”, (B) on Annexes A-▇, ▇-▇ and A-3 to each of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement,~~ the ~~Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement,~~ Prospectus Supplement and the ~~Administration Agreement~~Preliminary FWP, (C) in the Term Sheet and ~~had at all times~~(D) in the Pre-Pricing FWP agrees with the Master Tapes prepared by or on behalf of the Mortgage Loan Sellers, ~~and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.~~unless non-material deviations are otherwise noted in such letter; and (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws~~ they have compared an agreed-upon portion of the ~~State of Michigan with full power~~ data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in the Mortgage Loan files and ~~authority to own its properties and conduct its business~~ in such other sources as ~~presently conducted~~ shall be specified by ~~it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement~~them, and ~~had at~~ found such data and information to be in agreement in all ~~times~~material respects, ~~and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments~~unless non-material deviations are otherwise noted in such letter. (~~iii~~j) ~~Each~~ You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Underwritten Certificates on the Closing Date are as described in Section 1(a)(xv) and that, as of ~~DCFS and~~ the ~~Company is duly qualified to do business and is~~ Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in ~~good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain~~ such ~~licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee~~ratings. (ivk) ~~The direction by~~ You shall have received from the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity Secretary or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion an Assistant Secretary of the ~~court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized~~Trustee, ~~executed and delivered by DCFS. (viii) The Purchase Agreement and~~ in his individual capacity, a certificate, dated the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending orClosing Date, to the ~~best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting~~ effect that the ~~invalidity of~~ information under the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth heading “Transaction Parties—The Trustee” in the Prospectus (Supplement is true and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator, Tax Administrator, Certificate Registrar and Custodian” in the Prospectus Supplement is true and ~~any supplement thereto~~ correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the General Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the heading “Transaction Parties—The Master Servicers—W▇▇▇▇ Fargo Bank, National Association” in the Prospectus Supplement is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the General Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicers—CWCapital Asset Management LLC” in the Prospectus Supplement, is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the NCB Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Servicer under the headings ~~"Payments on~~ “Transaction Parties—The Master Servicers—National Cooperative Bank, N.A.” and “Transaction Parties—The Special Servicers—National Cooperative Bank, N.A.” in the ~~Notes", "Payments on~~ Prospectus Supplement is true and correct in all material respects. (p) [Reserved.] (q) You shall have received from the ~~Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ Secretary or an Assistant Secretary of the ~~Notes~~Trust Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Trust Advisor under the heading “Transaction Parties—The Trust Advisor” in the Prospectus Supplement, is true and correct in all material respects. (r) You shall have received from counsel for each Mortgage Loan Seller, the ~~Indenture~~General Master Servicer, the ~~Administration~~ General Special Servicer, the NCB Servicer, the Trust Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Underwritten Certificates, the transfer of the Mortgage Loans and any other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (u) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the 1934 Act to the satisfaction of the Underwriters. 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 ~~Purchase Agreement~~Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2015-C30)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from the Accountants copies of the Accountants’ Due Diligence Reports and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the effect ~~that: (i) DCFS has been duly organized and is validly existing~~ that the Accountants have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which it has determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the respective compilations of information and data regarding the Mortgage Loans prepared by or on behalf of the Mortgage Loan Sellers and provided to the Accountants (such compilations, the “Master Tapes”), unless non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Certificate Administrator, in his or her individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Certificate Administrator” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Trustee” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Non-Serviced Master Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Non-Serviced Master Servicer under the heading “Transaction Parties—The Non-Serviced Master Servicer” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (r) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Master Servicer, the Special Servicer, the Non-Serviced Master Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee, the Certificate Administrator, and each of the Third Party Purchasers a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (u) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank5 2026-5yr22)

Conditions to the Obligations of the Underwriters. The obligations of ~~the Underwriters~~ each Underwriter to purchase ~~and pay for~~ the ~~Offered~~ Reopening Notes ~~will~~ shall be subject to the accuracy of the representations and warranties on the part of the Depositor herein, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following ~~additional conditions precedent~~conditions: (a) The ~~Prospectus~~ Registration Statement shall be effective and ~~any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration Statement shall ~~have been issued~~ be in effect on the Closing Date and no proceedings for ~~that purpose shall have been instituted or~~such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the ~~knowledge of the Depositor or you~~Securities Act, shall be ~~contemplated by~~ pending before, or threatened by, the Commission ~~or by any authority administering any state securities or blue sky law~~on the Closing Date. (b) PGF and Petrobras shall have filed the Prospectus Supplement with the Commission pursuant to Rule 424(b) within two Business Days of the date hereof and all documents incorporated therein by reference shall have been filed with the Commission prior to the date of such filing, and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act. (c) On or prior to the Closing Date (i) a certified copy of the Original Indenture and (ii) a certified copy of a signed copy of the Registration Statement, as initially filed and all amendments thereto, including all consents and exhibits filed therewith shall have been delivered to the Underwriters. (d) On or prior to the Closing Date, ~~you~~ the following shall have been executed and delivered to the Underwriters, each dated the Closing Date: (i) the Original Indenture, as supplemented by the Twenty-First Supplemental Indenture and the Twenty-Second Supplemental Indenture duly executed and delivered by PGF and the Trustee in form and substance reasonably acceptable to such Underwriter; and (ii) the Guaranties duly executed and delivered by Petrobras and the Trustee in form and substance reasonably acceptable to the Underwriters. (e) All of the applicable taxes, fees and other charges due and owing in connection with the execution and delivery of the Transaction Documents shall have been paid. (f) The representations and warranties of the Companies in this Underwriting Agreement and in any of the other Transaction Documents to which the Companies are parties shall be true and correct on the date hereof and as of the Closing Date with the same effect as if made on the Closing Date. (g) The Underwriters shall have received from PricewaterhouseCoopers Auditores Independentes, the independent public accountants for the Companies, (x) on the date hereof, a comfort letter dated the date hereof addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters, concerning the financial statements and certain information with respect to the Companies set forth in the Disclosure Package and the Final Offering Document (including the documents incorporated by reference therein) and (y) on the Closing Date, a “bring down” comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters. (h) The Financial Industry Regulatory Authority shall have approved the underwriting arrangements contemplated herein (to the extent required) and the Notes shall be eligible for clearance and settlement through DTC. (i) PGF shall have furnished to the Underwriters a certificate of PGF, signed by an authorized officer of PGF acceptable to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters certifying: (i) that the conditions set forth in subsections (a) and (b) of this Section 6 have been satisfied; (ii) that no stop order suspending the effectiveness of the Registration Statement, the Disclosure Package or the Final Offering Document or any amendment or supplement thereto has been issued and no proceedings therefor have been initiated or threatened by the Commission; (iii) that the representations and warranties of PGF in this Underwriting Agreement and in any of the other Transaction Documents to which PGF is a party are true and correct in all material respects (unless such representations and warranties are already subject to a materiality qualifier therein, in which case such representations and warranties are true and correct in all respects)on and as of the Closing Date with the same effect as if made on the Closing Date, and PGF has 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; (iv) that since the date of the most recent financial statements included in the Disclosure Package (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of PGF, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Disclosure Package (exclusive of any amendment or supplement thereto); (v) that no Default or Event of Default (or other event that with the passage of time or notice, or both, will ripen into a Default or an Event of Default) 24 under the Notes or the Indenture has occurred and is continuing as of the Closing Date~~, of KPMG LLP, certified public accountants, substantially in~~ ; (vi) as to the ~~form~~ incumbency of the ~~drafts~~ officers or representatives of PGF signing the applicable Transaction Documents and the other documents delivered hereunder and thereunder on behalf of PGF and containing specimen signatures thereof; (vii) that the Memorandum and Articles of Association of PGF has not been amended and is in full force and effect, copies of which shall be attached to ~~which you~~ such certificate; and (viii) that the copy of the Original Indenture attached to the certificate is a true and correct copy thereof. (j) Petrobras shall have ~~previously agreed~~ furnished to the Underwriters a certificate, signed by an authorized officer of Petrobras acceptable to the Underwriters, dated the Closing Date and ~~otherwise~~ in form and substance reasonably satisfactory to ~~you~~ the Underwriters, certifying: (i) that the representations and ~~your counsel~~warranties of Petrobras in this Underwriting Agreement and any of the other Transaction Documents to which it is a party are true and correct in all material respects (unless such representations and warranties are already subject to a materiality qualifier therein, in which case such representations and warranties are true and correct in all respects) on and as of the Closing Date with the same effect as if made on the Closing Date, and Petrobras has 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; (ii) that since the date of the most recent financial statements included in the Disclosure Package (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of Petrobras and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Disclosure Package (exclusive of any amendment or supplement thereto); (iii) that no Default or Event of Default (or other event that with the passage of time or notice, or both, will ripen into a Default or an Event of Default) has occurred and is continuing as of the Closing Date under the Notes or the Indenture; (iv) as to the incumbency of the officers or representatives of Petrobras signing the applicable Transaction Documents and the other documents delivered hereunder and thereunder on behalf of Petrobras and containing specimen signatures thereof; and (v) that the Estatuto Social of Petrobras has not been amended and is in full force and effect, copies of which shall be attached to such certificate. (ck) The Trustee shall have furnished to the Underwriters a certificate of the Trustee, signed by an authorized officer of the Trustee acceptable to the Underwriters, dated the Closing Date, (i) stating that the Trustee is a banking corporation organized and validly existing under the laws of the State of New York and that its principal office and place of business is not located in The Netherlands or Brazil, (ii) regarding the authority of the Trustee to enter into the Transaction Documents to which it is a party and to execute all documents related thereto and (iii) regarding the incumbency of its officers executing such documents. (l) Subsequent to the ~~execution~~ date hereof and ~~delivery~~ on or prior to the Closing Date, there shall not have been any decrease in the rating of any of the Companies’ debt securities by any “nationally recognized statistical rating organization” (as defined for the purposes of Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of such possible change, or any withdrawal of any such rating. (m) Subsequent to the date hereof and on or prior to the closing of the issuance of the Reopening Notes, no legislation shall have been enacted by either house of the United States or Brazilian congress or any national legislative body in The Netherlands or by any state legislature, no other action shall have been taken by any Governmental Authority, whether by order, regulation, rule, ruling or otherwise, and no decision shall have been rendered by any court of competent jurisdiction in the United States, Brazil, The Netherlands or any other country, which would have a Material Adverse Effect. (n) On the Closing Date, none of the events listed below shall have occurred and be continuing: (i) a default in the performance or observance by the Companies of any covenant or agreement made by it under this Underwriting Agreement or any other Transaction Document to which they are a party; or (ii) proceedings shall have been commenced against either of the Companies or the Trustee under any Brazilian, United States, Dutch or other bankruptcy act or other foreign, federal or state law relating to bankruptcy or insolvency or laws relating to the relief of debtors, readjustments of indebtedness, reorganizations, arrangements, compositions or extensions, or appointing a receiver or decreeing or ordering the winding up or liquidation of the affairs of either Company or the Trustee or similar proceedings for any relief which includes or might result in, any material modification of the obligations of either Company or the Trustee hereunder or under the applicable Transaction Documents; or (iii) either Company or the Trustee shall have instituted proceedings to be adjudicated insolvent or a bankrupt or shall have consented to the institution of bankruptcy or insolvency proceedings against it or shall have filed a petition or answer or consent seeking reorganization or relief under any Brazilian, United States, Dutch or other bankruptcy act or any other federal or state law relating to bankruptcy or insolvency or shall have consented to the appointment of a receiver or shall have made an assignment for the benefit of creditors or shall have admitted in writing its inability to pay its debts. (o) Subsequent to the date hereof and on or prior to the Closing Date or, if earlier, the dates as of which information is given in the ~~Registration Statement~~ Disclosure Package (exclusive of any amendment ~~thereto) and the Prospectus (exclusive of any~~ or supplement thereto), there shall not have ~~occurred~~ been (i) any material change or decrease in any of the financial line items specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective ~~change~~ change, in or affecting ~~particularly~~ the condition (financial or otherwise), prospects, earnings, business or properties of the ~~Trust~~Companies and Petrobras’s subsidiaries, taken as a whole, whether or not arising from transactions in the ~~Depositor~~ordinary course of business, except as set forth or contemplated in the ~~Company~~Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, ~~DaimlerChrysler Corporation~~ in any case referred to in clause (i) or ~~DaimlerChrysler AG which~~(ii) above, is, in the judgment of the Underwriters, ~~materially impairs the investment quality of the Offered Notes or makes~~ so material and adverse as to make it impractical or inadvisable to market the ~~Offered Notes;~~ Reopening Notes as contemplated by the Disclosure Package (~~ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading~~ exclusive of any ~~securities of DaimlerChrysler AG~~amendment or supplement thereto). (p) The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the special United States ~~is involved~~counsel to the Companies, ~~any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in~~ an opinion (including a disclosure letter covering the ~~financial markets if~~Disclosure Package and the Final Offering Document), in dated the ~~judgment of~~ Closing Date and addressed to the Underwriters, in form and substance reasonably acceptable to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesUnderwriters. (dq) ~~You~~ The Underwriters shall have received from ▇▇▇▇▇ Lovells International LLP, Dutch counsel to PGF, an opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably acceptable to the Underwriters. (r) The Underwriters shall have received an opinion (including a disclosure opinion covering the Disclosure Package and the Final Offering Document) of internal counsel to Petrobras, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably acceptable to the Underwriters. (s) The Underwriters shall have received an opinion of ~~in-house~~ ▇▇▇▇▇▇▇ Coie LLP, external New York counsel in to the ~~office of the General Counsel of DCFS and the Company, addressed to you and the Indenture~~ Trustee, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably acceptable to the Underwriters. (t) The Underwriters shall have received an opinion (including a disclosure opinion covering the Disclosure Package and the Final Offering Document) of ▇▇▇▇▇▇▇▇ Neto Advogados, special Brazilian counsel for the Underwriters, in form and substance reasonably acceptable to the Underwriters (it being understood that the Companies shall have furnished to such counsel such documents as they request for the purposes of enabling them to pass on such matters). (u) The Underwriters shall have received an opinion (including a disclosure opinion covering the Disclosure Package and the Final Offering Document) from Shearman & Sterling LLP, special United States counsel to the Underwriters, in form and substance reasonably acceptable to the Underwriters, dated the Closing Date and addressed to the Underwriters (it being understood that the Companies shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters). (v) Prior to the Closing Date, the Companies shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request. (w) None of the events contemplated in Section 9 of this Underwriting Agreement shall have occurred. 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 if any of the opinions and certificates mentioned above or elsewhere in this Underwriting Agreement shall not be in all material respects reasonably satisfactory in form and substance to ~~you~~ the Underwriters and ~~your counsel~~counsel for the Underwriters, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Underwriting Agreement and ~~the Purchase Agreement, and had at~~ all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the ~~Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof~~ Underwriters hereunder may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreementcanceled at, or ~~the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of~~ at any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title prior to, the ~~Receivables and~~ Closing Date by the ~~other property~~ Underwriters. Notice of such cancellation shall be given to PGF in writing or by telephone or facsimile confirmed in writing. The documents required to be ~~transferred~~ delivered by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest this Section 6 will be ~~perfected upon~~ delivered at the ~~filing~~ office of ~~the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein~~Shearman & Sterling LLP, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ~~No filing or other action~~▇▇▇▇▇, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documentsClosing Date.

Appears in 1 contract

Sources: Underwriting Agreement (Petrobras - Petroleo Brasileiro Sa)

Conditions to the Obligations of the Underwriters. The ~~obligations~~ obligation of the Underwriters to ~~purchase~~ accept delivery of and pay for the ~~Offered Notes will~~ Bonds on the Closing Date shall be ~~subject~~ subject, at the option of the Underwriters, (i) to the accuracy in all material respects of the ~~representations~~ representations, warranties and ~~warranties~~ agreements on the part of the ~~Depositor herein~~Infrastructure Bank 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 officers and other officials of the ~~Depositor~~ Infrastructure Bank made in any certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the ~~Depositor~~ Infrastructure Bank of its obligations to be performed hereunder at or prior to the Closing Date; (ii) to the accuracy in all material respects of the representations, warranties and agreements on the part of the State Water Board contained in the Letter of Representations as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the officers and other officials of the State Water Board made in any certificates or other documents furnished pursuant to the provisions hereof or in the Letter of Representations, and to the performance by the State Water Board of its obligations to be performed hereunder and under the Letter of Representations at or prior to the Closing Date; and (iii) to the following additional ~~conditions precedent~~conditions: (a) ~~The Prospectus~~ At the time of Closing, the Indenture, the Pledge Agreement, the Tax Certificate (as defined in the Indenture), the Continuing Disclosure Agreement, and ~~any supplements thereto~~ this Purchase Agreement shall be in full force and effect as valid, binding and enforceable agreements between or among the various parties thereto, and this Purchase Agreement, the Indenture, the Pledge Agreement, the Tax Certificate, the Continuing Disclosure Agreement and the Official Statement shall not have been amended, modified or supplemented, except as described herein or as may otherwise have been agreed to in writing by the Underwriters, and there shall have been ~~filed~~ taken in connection with the ~~Commission in accordance~~ issuance of the Bonds and with the ~~Rules~~ transactions contemplated thereby and ~~Regulations~~ by this Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and ~~Section 7(a~~appropriate; (b) ~~hereof, and prior to~~ At the Closing Date, ~~no stop order suspending~~ the ~~effectiveness~~ Official Statement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriters; (c) Between the date hereof and the Closing Date, none of the ~~Registration Statement~~ following shall have ~~been~~ occurred: (1) legislation enacted in the Congress or in the legislature of the State of California or a decision rendered by a court established under Article III of the Constitution of the United States or under the Constitution of the State of California, as the case may be, or by the Tax Court of the United States, or an order, ruling, regulation (final or temporary) or official or staff statement issued or made: (A) by or on behalf of the Treasury Department of the United States or the Internal Revenue Service, or any agency, commission or instrumentality of the State of California, with the purpose or effect, directly or indirectly, of imposing federal income taxation or State of California personal income taxation, respectively, upon the Pledged Revenues (as that term is defined in the Indenture) as would be received by the Infrastructure Bank or the Trustee or upon such interest as would be received by the holders of the Bonds or obligations of the general character of the Bonds, or (B) by or on behalf of the Securities and ~~no proceedings for that purpose shall have been instituted or~~Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the ~~knowledge~~ effect that obligations of the ~~Depositor~~ general character of the Bonds or ~~you~~the Bonds are not exempt from registration under the Securities Act of 1933, ~~shall be contemplated~~ as amended (the “Securities Act”), or that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), which, in either case, in the reasonable judgment of the Underwriters, would have a material and adverse effect on the market price or marketability, at the initial offering prices set forth in the Official Statement, of the Bonds; (2) the declaration of war or the new material outbreak or escalation of existing military hostilities involving the United States or the occurrence of any other national emergency or calamity relating to the effective operation of the government of or the financial community in the United States, which, in the reasonable judgment of the Underwriters, would have a material and adverse effect on the market price or marketability, at the initial offering prices set forth in the Official Statement, of the Bonds; (3) the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange, or a disruption in securities clearance services, which, in the reasonable judgment of the Underwriters, would have a material and adverse effect on the market price or marketability, at the initial offering prices set forth in the Official Statement, of the Bonds; (4) the imposition by the ~~Commission~~ New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, underwriters, which, in the reasonable judgment of the Underwriters, would have a material and adverse effect on the market price or marketability, at the initial offering prices set forth in the Official Statement, of the Bonds; (5) an order, decree or injunction of any court of competent jurisdiction, or order, ruling, regulation or official or staff statement by the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, or the issuance, offering or sale of the Bonds, including any or all underlying obligations, as contemplated hereby or by the Official Statement, is or would be in violation of the federal securities laws as amended and then in effect; (6) the withdrawal or downgrading of any ~~authority administering~~ of the ratings on the Bonds to less than “Aaa”, “AAA,” and “AAA” by ▇▇▇▇▇’▇ Investors Service, Inc. (“▇▇▇▇▇’▇”), Standard & Poor’s Ratings (“S&P”), and Fitch Ratings, Inc. (“Fitch”), respectively; (7) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriters, makes untrue in any material respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of material fact or omits to state ~~securities~~ a material fact required to be stated therein or ~~blue sky law~~necessary to make the statements or information therein, in the light of the circumstances under which they were made, not misleading, which, in the reasonable judgment of the Underwriters, would have a material and adverse effect on the market price or marketability, at the initial offering prices set forth in the Official Statement, of the Bonds; or (8) any adverse event occurs with respect to the affairs of the Infrastructure Bank, the State Water Board or the Trustee, which, in the reasonable judgment of the Underwriters, would have a material and adverse effect on the market price or marketability, at the initial offering prices set forth in the Official Statement, of the Bonds. (bd) On At or prior to the Closing Date, ~~you~~ the Underwriters shall have received the following documents: (1) The Indenture, the Pledge Agreement, the Continuing Disclosure Agreement, the Pledged Project Obligations (access to the Pledged Project Obligations at the office of the State Water Board will be deemed to constitute the physical receipt of thereof) and the State Water Board’s outstanding Federal Capitalization Agreements with the United States Environmental Protection Agency (the “Federal Capitalization Agreements”) duly executed and delivered by the respective parties thereto, with only such amendments, modifications or supplements as may have been agreed to in writing by the Underwriters; provided that changes to the Federal Capitalization Agreements that do not adversely affect the transactions contemplated hereby may be made without such approval; (2) Three copies of the Official Statement executed on behalf of the State Water Board by its Executive Director; (3) An approving opinion of Bond Counsel, in substantially the form attached to the Official Statement as Appendix E, together with a ~~letter~~reliance letter addressed to the Underwriters, ~~dated~~ and a supplemental opinion, in substantially the form attached hereto as Exhibit E; (4) The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, as Disclosure Counsel, to the effect that during the course of its representation of the Infrastructure Bank with respect to the Bonds, no facts came to the attention of the attorneys in its firm rendering legal services in connection with such representation which caused it to believe that the Official Statement as of its date and as of the Closing ~~Date~~Date (except for any financial, statistical or economic data or forecasts, numbers, charts, tables, diagrams, estimates, projections, assumptions or expressions of ~~KPMG LLP~~opinion, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any ~~development involving~~ information about book-entry, tax exemption or DTC included or referred to therein, which may be expressly excluded from the scope of its opinion) contained or contains any untrue statement of a ~~prospective change in~~ material fact or ~~affecting particularly~~ omitted or omits to state any material fact necessary to make the ~~business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which~~statements therein, in the ~~judgment~~ light of the ~~Underwriters~~circumstances under which they were made, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States.not misleading; (d5) ~~You shall have received an~~ The opinion of ~~in-house~~ counsel in to the ~~office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee~~Infrastructure Bank, dated the Closing Date and ~~satisfactory~~ addressed to the Infrastructure Bank and the Underwriters, in substantially the form attached hereto as Exhibit C; (6) The opinion of the Chief Counsel to the State Water Board, dated the Closing Date and addressed to the Infrastructure Bank and the Underwriters, in substantially the form attached hereto as Exhibit D; (7) The opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, dated the Closing Date and addressed to the Underwriters, in form and substance acceptable to ~~you and your counsel~~the Underwriters; (8) A certificate of the Executive Director, or such other authorized official of the Infrastructure Bank as is reasonably acceptable to the Underwriters, dated the Closing Date, to the effect that: (iA) ~~DCFS~~ the Infrastructure Bank has ~~been duly organized~~ fulfilled or performed each of its obligations contained in the Indenture, the Pledge Agreement, and this Purchase Agreement required to be fulfilled or performed by it as of the Closing Date; (B) the representations and warranties made by the Infrastructure Bank in the Pledge Agreement and this Purchase Agreement are true and correct in all material respects on the Closing Date, with the same effect as if made on and with respect to the facts as of the Closing Date; and (C) the issuance of the Bonds will not cause the Infrastructure Bank to exceed any limitations upon indebtedness which it is ~~validly existing as a limited liability company in good standing~~ now authorized to incur under the ~~laws~~ ▇▇▇▇▇▇▇▇-Peace Infrastructure and Economic Development Bank Act, constituting Title 6.7 of Division 1 of the Government Code of the State of ~~Michigan~~ California (commencing at Section 63000 thereof), as amended; (9) A certificate of the Executive Director of the State Water Board, or such other authorized official of the State Water Board as is acceptable to the Underwriters, dated the Closing Date, to the effect that: (A) the representations and warranties made by the State Water Board in the Pledge Agreement and the Letter of Representations are true and correct as of the Closing Date; (B) no material and adverse change has occurred in the financial condition, assets, properties or results of operation of the State Water Board’s Clean Water State Revolving Fund Program which is not described in the Official Statement; (C) with ~~full power and authority~~ respect to ~~own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement~~the State Water Board’s Clean Water State Revolving Fund Program, the ~~Sale~~ State Water Board has not offered or issued any bonds, notes or other obligations for borrowed money or incurred any material liabilities, direct or contingent, other than in the ordinary course of business, which are not described in or contemplated by the Official Statement; (D) no event affecting the State Water Board has occurred since the date of the Official Statement which either makes untrue or incorrect in any material respect as of the Closing Date any statement or information contained in the Official Statement concerning the State Water Board or is not reflected in the Official Statement but should be reflected therein in order to make the statements and ~~Servicing~~ information therein concerning the State Water Board not misleading in any material respect; (E) there are no actions, suits or proceedings which have been served on the State Water Board or, to the knowledge of State Water Board, are otherwise pending or threatened against the State Water Board (i) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Pledged Revenues (as such term is defined in the Indenture) pledged under the Pledge Agreement or the Indenture or any payments to be made by the State Water Board pursuant to the Pledge Agreement; (ii) in any way contesting or affecting the issuance or delivery of the Bonds or the validity of the Bonds, the Indenture, the Pledge Agreement, the Purchase Agreement, the ~~Trust Agreement, and~~ Letter of Representations or the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing collection of Pledged Revenues pledged under the ~~laws~~ Pledge Agreement or the Indenture; (iii) in any way contesting the existence or powers of the State ~~of Michigan with full power~~ Water Board; and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) ~~The direction by~~ which, if determined adversely to it, might materially adversely affect the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion consummation of the ~~court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered~~ transactions contemplated by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the ~~Trust~~ Pledge Agreement, the ~~Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery~~ Letter of ~~the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement~~Representations, the ~~Purchase Agreement, the Trust Agreement, the Indenture, the Administration~~ Continuing Disclosure Agreement or the ~~Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company~~ Tax Certificate or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, ~~earnings, prospects, business~~ assets or properties of the ~~Depositor and its subsidiaries, taken as a whole.~~State Water Board’s Clean Water State Revolving Fund Program; and (~~xii~~i) ~~Nothing~~ The Operating Agreement of November 2012, by and between the United States Environmental Protection Agency, Region IX, and State Water Board has ~~come~~ not been amended, modified or supplemented, and is in full force and effect, and (ii) The Federal Capitalization Agreements have not been amended, modified or supplemented and are in full force and effect as of the Closing Date; (10) The Blanket Issuer Letter of Representations of the Infrastructure Bank, addressed to ~~such counsel's attention that would lead such counsel to believe~~ DTC, together with evidence that the Bonds have been deposited with and received by DTC or such other evidence, satisfactory to the Underwriters, that the Bonds have been duly accepted by the Trustee, as agent under DTC’s Fast Automated Securities Transfer program; (11) A certified copy of the Infrastructure Bank Resolution; (12) A certified copy of the State Water Board Resolution; (13) The Tax Certificate duly executed by the parties thereto and an Internal Revenue Service Form 8038 executed by the Infrastructure Bank; (14) Satisfactory evidence that the Bonds have been rated “Aaa” by ▇▇▇▇▇’▇, “AAA” by S&P and “AAA” by Fitch; (15) Evidence satisfactory to the Infrastructure Bank to indicate that the State Water Board has retained the services of a rebate consultant for the Bonds; and (16) Such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriters or Bond Counsel may reasonably request to evidence compliance by the Infrastructure Bank and the State Water Board with legal requirements, the truth and accuracy, as of the Closing Date, of the representations of the Infrastructure Bank contained herein and ~~warranties~~ of ~~(x)~~ the ~~Company~~ State Water Board contained in the ~~Purchase~~ Pledge Agreement and the ~~Trust Agreement are other than as stated therein~~ Letter of Representations, and the due performance or ~~(y) DCFS contained in this Agreement~~satisfaction by the Infrastructure Bank and the State Water Board at or prior to such time of all agreements then to be performed and all conditions then to be satisfied by the Infrastructure Bank and the State Water Board. If the Treasurer, the ~~Trust Agreement, the Purchase Agreement~~ Infrastructure Bank or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property State Water Board shall be unable to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.satisfy th

Appears in 1 contract

Sources: Bond Purchase Agreement

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of (a) Liberty, LIG and (b) Basis, Basis Investment) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Depositor’s knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company~~ result of which they have determined that the information of an accounting, financial or statistical nature set forth (A) in ~~good standing~~ the Preliminary FWP and Prospectus Supplement under the ~~laws~~ captions “Summary,” “Description of the ~~State~~ Mortgage Pool” and “Yield and Maturity Considerations”, (B) on Annexes ▇-▇, ▇-▇ and A-3 to each of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement,~~ the ~~Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement,~~ Prospectus Supplement and the ~~Administration Agreement~~Preliminary FWP, (C) in the Term Sheet and ~~had at all times~~(D) in the Pre-Pricing FWP agrees with the Master Tapes prepared by or on behalf of the Mortgage Loan Sellers, ~~and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.~~unless non-material deviations are otherwise noted in such letter; and (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws~~ they have compared an agreed-upon portion of the ~~State of Michigan with full power~~ data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in the Mortgage Loan files and ~~authority to own its properties and conduct its business~~ in such other sources as ~~presently conducted~~ shall be specified by ~~it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement~~them, and ~~had at~~ found such data and information to be in agreement in all ~~times~~material respects, ~~and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments~~unless non-material deviations are otherwise noted in such letter. (~~iii~~j) ~~Each~~ You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Underwritten Certificates on the Closing Date are as described in Section 1(a)(xv) and that, as of ~~DCFS and~~ the ~~Company is duly qualified to do business and is~~ Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in ~~good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain~~ such ~~licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee~~ratings. (ivk) ~~The direction by~~ You shall have received from the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity Secretary or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion an Assistant Secretary of the ~~court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized~~Trustee, ~~executed and delivered by DCFS. (viii) The Purchase Agreement and~~ in his individual capacity, a certificate, dated the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending orClosing Date, to the ~~best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting~~ effect that the ~~invalidity of~~ information under the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth heading “Transaction Parties—The Trustee” in the Prospectus (Supplement is true and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator, Tax Administrator, Certificate Registrar and Custodian” in the Prospectus Supplement is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus Supplement is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus Supplement, is true and correct in all material respects. (o) You shall have received from the [Secretary or an Assistant Secretary] of PGI, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to PGI under the heading “Transaction Parties—Additional Primary Servicers—Principal Global Investors, LLC” in the Prospectus Supplement, is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of PAR, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to PAR under the heading “Transaction Parties—Additional Primary Servicers—Prudential Asset Resources, Inc.” in the Prospectus Supplement, is true and correct in all material respects. (q) You shall have received from the Secretary or an Assistant Secretary of the Trust Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Trust Advisor under the heading “Transaction Parties—The Trust Advisor” in the Prospectus Supplement, is true and correct in all material respects. (r) You shall have received from counsel for each Mortgage Loan Seller, the Master Servicer, the Special Servicer, PAR, PGI, the Trust Advisor, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Underwritten Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto under~~ other matters related thereto. Any such opinions shall be dated the ~~headings "Payments on~~ Closing Date and addressed to the ~~Notes"~~Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, ~~"Payments on the Securities"~~and you and such counsel shall have received such additional information, ~~"Form of Securities~~ certificates and ~~Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar~~ documents as ~~such statements constitute a summary~~ you or they may have reasonably requested. If any of the ~~Notes~~conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, if the Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2015-C27)

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 Offered Notes will~~ Underwritten Certificates shall be subject to the accuracy of the representations and warranties on the part of the ~~Depositor herein~~Company contained herein as of the date 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 and as of the Closing Date, to the accuracy of the statements of ~~officers of~~ the ~~Depositor~~ Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the ~~Depositor~~ Company of its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Company's knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission ~~or by any authority administering any state securities or blue sky law.~~in accordance with Rule 424 under the 1933 Act; (b) On You shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Underwriters, a 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 and dated the Closing Date, to the effect that: (i) the representations and warranties of the Company 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) the Company has 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~~, you~~ ; and FUNB shall have ~~received~~ delivered to you a ~~letter~~certificate of FUNB, signed by an authorized officer of FUNB and dated ~~as of~~ the Closing Date, of ~~KPMG LLP~~the President, ~~certified public accountants, substantially in the form~~ a Senior Vice President or a Vice President of ~~the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent~~ FUNB to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred effect that: (i) ~~any change or any development involving a prospective change~~ the representations and warranties of FUNB in ~~or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which,~~ this Agreement are true and correct in ~~the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes~~all material respects; and (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifFUNB has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States.Closing Date; (d) You shall have received ~~an opinion of in-house counsel in the office of the General Counsel of DCFS and~~ (i) with respect to the Company, ~~addressed~~ a certificate of the Office of the Comptroller of the Currency and (ii) with respect to ~~you~~ FUNB 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, to the effect that: (x) each individual who, as an officer or representative of the Company, 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 ~~Indenture Trustee~~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 the Company) has occurred since the date of the good standing certificate referred to in 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 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 the Closing Date, and of the resolutions of the Company and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an assistant secretary of the FUNB, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of FUNB, 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 FUNB) has occurred since the date of the certificate referred to in paragraph 6(d) above which has affected the existence of FUNB 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 FUNB) of the articles of association and by-laws of FUNB, as in effect on the Closing Date, and of the resolutions of FUNB and any required shareholder consent relating to the transactions contemplated in this Agreement; (f) You shall have received from ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the Company, a favorable opinion, dated the Closing Date and satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the effect that: (i) ~~DCFS~~ The Registration Statement and any amendments thereto have become effective under the 1933 Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been ~~duly organized~~ issued and ~~is validly existing~~ not withdrawn, no proceedings for that purpose have been instituted or threatened and not terminated; and the Registration Statement, the Basic Prospectus, the Prospectus Supplement and each amendment or supplement thereto, as ~~a limited liability company~~ of their respective effective or issue dates (other than the financial statements, schedules and other financial and statistical information contained therein as to which such counsel need express no opinion), complied as to form in ~~good standing under~~ all material respects with the ~~laws~~ applicable requirements of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, 1933 Act and the ~~Administration Agreement~~rules and regulations thereunder; and such counsel has no reason to believe that (A) the Registration Statement (which, for purposes of this clause, shall be deemed not to include any exhibits filed therewith), or any amendment thereto, at the time it became effective, contained or, as of the date of such opinion, contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that (B) the Prospectus, as amended or supplemented, as of the respective date thereof and ~~had~~ at ~~all times~~the date hereof, contained or contains any untrue statement of a material fact or omits 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 (other than the financial statements, schedules and ~~now has, the power, authority~~ other financial and ~~legal right~~ statistical information contained therein as to ~~acquire, own, sell and service the Receivables.~~which such counsel need express no opinion); (ii) ~~The Company has been duly organized and is validly existing~~ 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 Registration Statement, as ~~a limited liability company in good standing under~~ amended, or the ~~laws of~~ Prospectus or to be filed as exhibits to the ~~State of Michigan with full power and authority~~ Registration Statement, as amended, other than those described or referred to ~~own its properties and conduct its business~~ therein or filed or incorporated by reference as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments.exhibits thereto; (iii) ~~Each of DCFS and the Company is duly qualified to do business and is in good standing, and~~ Assuming this Agreement has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by ~~DCFS~~the Company and FUNB, ~~and are~~ it constitutes a valid, legal, ~~valid~~ binding and ~~binding obligations~~ enforceable agreement of ~~DCFS enforceable against DCFS in accordance with their terms~~each of the Company and FUNB, ~~except (x) the enforceability thereof may be subject~~ subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws ~~now or hereafter in effect relating to~~ affecting creditors' rights ~~and (y) the remedy~~ generally, to general principles of ~~specific performance and injunctive and other forms~~ equity regardless of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result whether enforcement is sought in a ~~material breach, violation~~ proceeding in equity or ~~acceleration of, or constitute a default under, any term or provision of~~ at law and public policy considerations underlying the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending orsecurities laws, to the ~~best of~~ extent that such ~~counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting~~ public policy considerations limit the ~~invalidity~~ enforceability of the ~~Trust or any~~ provisions of ~~the Basic Documents, (2) seeking~~ this Agreement that purports to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement.provide indemnification from securities law liabilities; (xiiv) ~~To the best knowledge of such counsel and except as~~ [Reserved] (v) The statements set forth in the Prospectus (Supplement under the headings "Description of the Certificates" and ~~any supplement thereto), no default exists~~ "Servicing of the Mortgage Loans" and ~~no event has occurred which, with notice, lapse of time or both, would constitute a default~~ in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "~~Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles~~Description of the Certificates" and "~~-- Insolvency~~ Description of the ~~Depositor May Result~~ Pooling Agreements", insofar as such statements purport to summarize certain provisions of the Underwritten Certificates and the Pooling and Servicing Agreement, are true and correct in ~~Delays~~all material respects; (vi) The statements set forth in the Basic Prospectus and the Prospectus Supplement under the headings "Material Federal Income Tax Consequences", ~~Reductions or Loss of Payments to Securityholders~~"ERISA Considerations" and "~~Certain~~ Legal ~~Aspects of the Receivables~~Investment", to the extent that 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~~respects with respect to those consequences or aspects that are discussed; (vii) Any Class of Underwritten Certificates will be "mortgage related securities", as defined in Section 3(a)(41) of the 1934 Act, so long as such Certificates are rated "AAA" or "AA" (or its equivalent) by at least one nationally recognized statistical rating organization; (viii) [Reserved] (ix) No consent, approval, authorization or order of any State of New York or federal court or governmental agency or body is required for the consummation by the Company of the transactions contemplated herein, except (A) such as have been obtained under the 1933 Act; (B) such as may be required under the blue sky laws of any jurisdiction in connection with the offer and sale of the Underwritten Certificates by the Underwriters, as to which such counsel need express no opinion; and (C) any recordation of the assignments of the Mortgage Loans pursuant to the Pooling and Servicing Agreement that has not yet been completed. (~~xix~~x) Assuming compliance with all provisions of the Pooling and Servicing Agreement, for federal income tax purposes, REMIC I, REMIC II, REMIC III and REMIC IV will each qualify as a real estate mortgage investment conduit (a "REMIC") under the Internal Revenue Code of 1986 (the "Code"), the Class R-I Certificates will be the sole class of "residual interests" in REMIC I, the Class R-II Certificates will be the sole class of "residual interests" in REMIC II, the Class R-III Certificates will be the sole class of "residual interests" in REMIC III, the Class R-IV Certificates will be the sole class of "residual interests" in REMIC IV, the Class Q Certificates will be "regular interests" in REMIC I and the Class A-1, Class A-2, Class IO, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M and Class N Certificates will be the "regular interests" in REMIC IV; and (xi) The ~~statements~~ Certificates conform in all material respects to the description thereof contained in the ~~Prospectus~~ Prospectus; and ~~any supplement thereto under~~ the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale Pooling and Servicing Agreement conforms in all material respects to the description thereof contained in the Prospectus. With respect to such opinion, such counsel 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 ~~Trust~~ Pooling and Servicing Agreement; may assume the due authorization, ~~constitute a fair summary~~ execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Company; may qualify such opinion only as to the federal laws of the United States of America, the laws of the State of New York, the laws of the State of North Carolina and the corporation law of the State of Delaware; and may, to the extent deemed necessary by such counsel, rely on the opinion of counsel in the regular employ of the Company or any affiliate of the Company or independent North Carolina counsel. Such counsel shall also confirm that the Underwriters may rely, on and as of the Closing Date, on any opinion or opinions of such ~~documents.~~counsel submitted to any Rating Agency as if addressed to the Underwriters and dated the Closing Date;

Appears in 1 contract

Sources: Underwriting Agreement (First Union Commercial Mortgage Securities Inc)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to ~~purchase and pay for~~ such Designated Securities shall be subject, in the ~~Offered Notes will be subject~~ discretion of the Representatives, to the ~~accuracy of the~~ condition that all representations and warranties ~~on the part~~ and other statements of the ~~Depositor herein~~Company in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, ~~to the accuracy~~ at and as of the ~~statements~~ Time of ~~officers of~~ Delivery for such Designated Securities, true and correct in all material respects, the ~~Depositor made pursuant to~~ condition that the ~~provisions hereof, to the performance by the Depositor~~ Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and to the following additional ~~conditions precedent~~conditions: (a) The Prospectus ~~and any supplements thereto~~ in relation to the applicable Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been filed with the Commission pursuant to Rule 433 within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction. (b) Counsel for the Underwriters shall have furnished to the Representatives such opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the incorporation of the Company, the validity of the Indenture, the Designated Securities, the Registration Statement, the Prospectus as amended or supplemented, the Time of Sale Information and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. (c) The General Counsel of the Company, or other counsel for the Company satisfactory to the Representatives, shall have furnished to the Representatives such counsel’s written opinion, dated the Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, substantially to the effect that: (i) The Company and each Principal Subsidiary have been duly incorporated and each is validly existing as a corporation or other entity under the laws of its jurisdiction of incorporation, has all requisite corporate (or entity) power and authority to own, lease and operate its properties and to conduct its business in all material respects as it is currently being conducted and as described in the Prospectus and the Time of Sale Information; the Company is in good standing under the laws of its jurisdiction of incorporation and is duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction where the ownership and leasing of its properties or the conduct of its business requires such qualification, except where the failure to so qualify would not reasonably be expected to have a Material Adverse Effect; (ii) Each of this Agreement and the Pricing Agreement with respect to the Designated Securities has been duly authorized, executed and delivered by the Company; (iii) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject and, to the best of such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities, other than as set forth or incorporated by reference in the Prospectus and the Time of Sale Information and other than those which individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect; (iv) The Designated Securities have been duly authorized by the Company; assuming (a) that they have been duly signed by the manual or facsimile signatures of officers (specified in such opinion) of the Company (provided that counsel shall not make the assumption in this clause (a) with respect to Designated Securities that are global securities), and (b) that the Designated Securities have been duly authenticated by the Trustee under the Indenture, when issued and delivered to the Underwriters in exchange for payment therefor in accordance with the ~~Rules~~ terms of this Agreement, the Designated Securities shall constitute valid and ~~Regulations~~ binding obligations of the Company, entitled to the benefits provided by the Indenture and ~~Section 7(a~~enforceable against the Company in accordance with their terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability; and the Designated Securities and the Indenture conform in all material respects to the descriptions thereof in the Prospectus and the Time of Sale Information; (v) ~~hereof~~The Indenture has been duly authorized, executed and delivered by the Company and constitutes the valid and binding obligation of the Company enforceable against the Company in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability; the Indenture has been duly qualified under the Trust Indenture Act; (vi) The statements set forth in the Prospectus and the Time of Sale Information under the captions “Description of Notes” and “Description of Debt Securities” (or similar headings referring to the Designated Securities), insofar as they purport to constitute a summary of the terms of the Securities and the provisions of the documents referred to therein, are accurate summaries of the material terms thereof; (vii) The statements made in the Prospectus and the Time of Sale Information under the caption “Material United States Federal Income Tax Considerations,” insofar as such statements constitute summaries of United States federal income tax law and regulations or matters of United States federal income tax law, are accurate in all material respects; (viii) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, this Agreement and the Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute or result in a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other similar agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, other than such as would not reasonably be expected to have a Material Adverse Effect or affect the validity of the Designated Securities or the legal authority of the Company to comply with the Designated Securities, the Indenture, this Agreement or the Pricing Agreement; nor will such actions result in a violation of the provisions of the Restated Certificate of Incorporation of the Company or the Bylaws of the Company, as amended and restated; nor will any such action result in a violation of any statute or any order, rule or regulation of any court or governmental agency or body in the United States having jurisdiction over the Company or any of its subsidiaries or any of their properties other than such as would not reasonably be expected to have a Material Adverse Effect or affect the validity of the Designated Securities or the legal authority of the Company to comply with the Designated Securities, the Indenture, this Agreement or the Pricing Agreement (except to the extent that the issue and sale of the Designated Securities as contemplated by this Agreement and the Pricing Agreement and the distribution of the Designated Securities by the Underwriters may result in violations of state securities or Blue Sky laws); and except as set forth in the Registration Statement or the Prospectus, no consent, approval, authorization, order, registration or qualification of or with any New York State or Federal court or any such New York State or Federal regulatory authority or other governmental body having jurisdiction over the Company is required for the issue and sale of the Designated Securities by the Company or the consummation by the Company of the other transactions contemplated by this Agreement or the Pricing Agreement or the Indenture, except such as have been obtained under the Securities Act and the Trust Indenture Act, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters, as to which such counsel need express no opinion; (ix) The 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 became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; (x) The Registration Statement and the Prospectus as amended or supplemented and any further amendments and supplements thereto made by the Company prior to the ~~Closing Date~~Time of Delivery for the Designated Securities (other than the financial statements and related notes and schedules and other financial, statistical and accounting data contained or incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion) appear on their face to be appropriately responsive in all material respects with the requirements of the Securities Act and the Trust Indenture Act (other than the Trustee’s Statement of Eligibility on Form T-1, as to which such counsel need express no opinion) and the rules and regulations thereunder; and the information included in the Registration Statement in response to Item 10 (insofar as it relates to such counsel) of Form S-3 is to the best of such counsel’s knowledge an accurate statement of the matter therein set forth and fairly presents the information called for with respect to that matter by the Securities Act and the rules and regulations thereunder; (xi) The Registration Statement has become effective under the Securities Act; any required filing of the Prospectus pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by Rule 424(b) under the Securities Act, any required filing of any Issuer Free Writing Prospectus pursuant to Rule 433 under the Securities Act has been made in the manner and within the time period required by Rule 433 and, based solely upon such counsel’s review of the list of stop orders issued by the Commission and published on the Commission’s website as of the date of the issuance of the Designated Securities, no stop order suspending the effectiveness of the Registration Statement ~~shall have~~ has been issued ~~and~~ under the Securities Act and, to the best of such counsel’s knowledge, no proceedings for that purpose ~~shall~~ or pursuant to Section 8A of the Securities Act have been ~~instituted or~~initiated or are pending or threatened by the Commission; and (xii) The Company is not and, after giving effect to the ~~knowledge~~ offering and sale of the ~~Depositor~~ Securities and the application of the proceeds thereof as described in the Registration Statement, the Prospectus and the Time of Sale Information, will not be an “investment company” or ~~you~~an entity “controlled” by an “investment company” within the meaning of the Investment Company Act. Such counsel shall also state that during the preparation of the Registration Statement, the Prospectus and the Time of Sale Information, such counsel has participated in conferences with other officers and representatives of the Company, representatives of Deloitte & Touche LLP, the Underwriters and their counsel, at which conferences the contents of the Registration Statement, the Prospectus and the Time of Sale Information and related matters were discussed, reviewed and revised. Although such counsel is not passing upon, and does not assume responsibility for, the accuracy, completeness or fairness of such contents (except as expressly indicated in subparagraphs (vi) and (vii) above) and has not made any independent investigation or verification thereof, on the basis of the information which was developed in the course thereof, considered in light of such counsel’s understanding of applicable law and the experience such counsel has gained through its practice thereunder, nothing has come to such counsel’s attention which causes it to believe that: (A) that the Registration Statement or any post-effective amendment thereto, at the time the Registration Statement or any post-effective amendment thereto (including the filing of the Company’s Annual Report on Form 10-K with the Commission) became effective and as of the date hereof, contained any 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, (B) that the Prospectus as of its date and the Time of Delivery included or includes 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 (C) that the Time of Sale Information, at the Time of Sale (which the Representatives have informed such counsel was the time prior to the first use of the Free Writing Prospectus) and, as amended or supplemented, if applicable, as of the Time of Delivery, included or includes 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; provided that such counsel need not express any belief as to the financial statements, related notes and supporting schedules and other financial, statistical and accounting data included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information or omitted therefrom or as to the Trustee’s Statement of Eligibility on Form T-1. Such counsel shall also state that such counsel does not know of any contracts or other documents of a character required to be ~~contemplated~~ filed as an exhibit to the Registration Statement or required to be incorporated by reference in the ~~Commission~~ Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by ~~any authority administering any state securities~~ reference or ~~blue sky law~~described as required. In rendering the foregoing opinion, such counsel may rely upon opinions of local counsel (which may include counsel for the Representatives) satisfactory in form and scope to counsel for the Representatives. (bd) ~~On or prior to~~ At the ~~Closing Date~~date hereof and at the Time of Delivery, ~~you~~ the Representatives shall have received from Deloitte & Touche LLP a ~~letter~~letter dated such date, ~~dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise~~ in form and substance reasonably satisfactory to ~~you~~ the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and ~~your counsel~~information of the type referred to in AICPA Statement on Auditing Standards No. 72 (or any successor standard thereto). (ce) ~~Subsequent to~~ Since the ~~execution and delivery of this Agreement or, if earlier, the~~ respective dates as of which information is given in the ~~Registration Statement (exclusive of any amendment thereto) and the~~ Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.including a

Appears in 1 contract

Sources: Underwriting Agreement (Monsanto Co /New/)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder to purchase ~~and pay for~~ the ~~Offered Notes will~~ Certificates shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Depositor herein~~Company contained herein as of the date 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 ~~officers of~~ the ~~Depositor~~ Company made in any certificates delivered pursuant to the provisions hereof, to the performance in all material respects by the ~~Depositor~~ Company of its obligations hereunder and to satisfaction, as of the Closing Date, of the following additional ~~conditions precedent~~conditions: (a) ~~The Prospectus and any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Company's knowledge, threatened; the ~~Depositor~~ Prospectus Supplement shall have been filed or ~~you, shall~~ transmitted for filing with the Commission in accordance with Rule 424 under the 1933 Act; and any Free Writing Prospectuses contemplated to be ~~contemplated~~ filed by the Company under Section 4(d) hereof shall have been filed or transmitted for filing with the Commission ~~or by any authority administering any state securities or blue sky law~~in accordance with Rule 433 under the 1933 Act, to the extent required to be filed thereunder. (b) On The Company shall have delivered to the Underwriters a certificate of the Company, signed by an authorized officer of the Company and dated the Closing Date, to the effect that: (i) the representations and warranties of the Company 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) the Company has 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~~, you~~ . (c) The Underwriters shall have received with respect to the Company a ~~letter~~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, to the effect that: (i) each individual who, as an officer or representative of the Company, signed this Agreement, the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein, in the Pooling and Servicing Agreement or in the Mortgage Loan Purchase 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 ~~KPMG LLP~~such persons appearing on such documents and certificates are their genuine signatures; and (ii) no event (including, ~~certified public accountants~~without limitation, ~~substantially in~~ any act or omission on the ~~form~~ part of the ~~drafts~~ Company) has occurred since the date of the good standing certificate referred to ~~which you have previously agreed and otherwise~~ in ~~form and substance satisfactory to you and your counsel.~~ paragraph (c) ~~Subsequent to~~ above which has affected the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties good standing of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing Company under the laws of the State of ~~Michigan with full power~~ Delaware. Such certificate shall be accompanied by true and ~~authority to own its properties~~ complete copies (certified as such by the Secretary or an assistant secretary of the Company) of (i) the certificate of incorporation and ~~conduct its business~~ by-laws of the Company, as ~~presently conducted by it~~in effect on the Closing Date, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ the ~~laws~~ resolutions of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect any required shareholder consent relating to ~~creditors' rights and (y)~~ the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the ~~Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale~~ Pooling and Servicing Agreement ~~(such agreements, excluding this Agreement, being, collectively,~~ and the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Mortgage Loan Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xie) To The Underwriters shall have received from Thacher Proffitt & Wood LLP, special counsel for the ~~best knowledge of~~ Company, one o▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ op▇▇▇▇ns, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters (taking into account comparable opinions rendered by such counsel on behalf of the Company in similar commercial mortgage securitization transactions involving the Company, LBI and ~~except~~ Morgan Stanley). (f) The Underwriters shall have receive▇ ▇▇▇▇e▇ ▇▇ ▇▇l legal opinion letters delivered by Thacher Proffitt & Wood LLP, special counsel for the Company, to th▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇s i▇ ▇▇nnection with the issuance of the Certificates, accompanied in each case by a letter signed by Thacher Proffitt & Wood LLP stating that the Underwriters may rely ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ let▇▇▇ as ~~set forth~~ 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, in form and substance reasonably acceptable to the Underwriters (taking into account comparable opinions rendered by such counsel on behalf of the Company in similar commercial mortgage securitization transactions involving the Company, LBI and Morgan Stanley). (h) The Underwriters shall have receive▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Proffitt & Wood LLP, special counsel for the Company, a let▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇los▇▇▇ Date, containing a statement substantially to the effect that, based on discussions with certain representatives of the Company, the Mortgage Loan Seller, the Underwriters, the Trustee, the Master Servicer, the Special Servicer and their respective counsel, and (with limited exception) without having reviewed any of the mortgage notes, mortgages or other documents relating to the Mortgage Loans, or any documents, records, agreements, ratings or portfolio data or any other information regarding the business or operations of the sponsors, the Trustee, the Master Servicer or the Special Servicer (other than the Pooling and Servicing Agreement), and without having made any independent check or verification of the statements contained in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the ~~Company is a party or by which either~~ Time of ~~them is bound~~Sale Information, ~~which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing~~ nothing has come to such counsel's attention that would lead ~~such counsel~~ it to believe that the Offering Prospectus, at the Time of Sale, or the Prospectus, at the date of the Prospectus Supplement or at the Closing Date, contained or contains 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, except that such counsel need not comment on (i) any financial, statistical or numerical data set forth or referred to therein or omitted therefrom, (ii) any information set forth on or omitted from any diskette, CD-ROM or other electronic media that may accompany the Prospectus, (iii) any documents or information incorporated therein by reference, or (iv) any Excluded Information contained therein or omitted therefrom. (i) The Underwriters shall have received from Deloitte & Touche LLP, certified public accountants, a letter dated the date of the Prospectus Supplement and satisfactory in form and substance to the Underwriters and their counsel, to the following effect: (i) 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 Time of Sale Information, as was agreed upon by the Underwriters, agrees with the data sheet or computer tape prepared by or on behalf of the Mortgage Loan Seller, unless otherwise noted in such letter; (ii) 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 Seller, unless otherwise noted in such letter; and (iii) they have compared the data contained in the data sheet or computer tape referred to in the immediately preceding clauses (i) and (ii) 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 and the Trustee, 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 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 parties to the Pooling and Servicing Agreement and on certificates furnished by public officials and, further, may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the 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, the laws of the jurisdiction of organization for the party on behalf of which such opinion is being rendered and the federal law of the United States. (xk) The Underwriters shall have been furnished with all documents, certificates and opinions required to be delivered by each Mortgage Loan Seller and/or any affiliate thereof in connection with the sale of Mortgage Loans by such Mortgage Loan Seller to the Company, pursuant to the Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to rely on each such certificate executed and delivered by the Mortgage Loan Seller, any affiliate thereof or any of their respective officers and representatives, to the same extent that the Company ~~contained~~ may so rely, and each such opinion addressed to the Company shall also be addressed to the Underwriters. (l) The Underwriters shall have been furnished with such other documents and opinions as the Underwriters may reasonably require, for the purpose of enabling them to pass upon the issuance and sale of the Certificates as herein contemplated and related proceedings, or in order to evidence the ~~Purchase Agreement~~ accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained. (m) 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 ~~Trust Agreement are other than~~ conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as ~~stated therein or (y) DCFS contained~~ provided in this Agreement, if the ~~Trust Agreement, the Purchase Agreement~~ Company is in material breach of any covenants or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment agreements contained herein or if any of the ~~Receivables, all documents~~ opinions and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware certificates referred to ~~above, is necessary to perfect and maintain the interest~~ above or ~~the security interest of the Indenture Trustee~~ elsewhere in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase this Agreement ~~and the Administration Agreement conform~~ shall not be in all material respects ~~with~~ reasonably satisfactory in form and substance to the ~~descriptions thereof contained in the Prospectus (~~Underwriters and ~~any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles"~~ their counsel, this Agreement and ~~"-- Insolvency~~ all obligations of the ~~Depositor May Result in Delays~~Underwriters hereunder may be cancelled at, ~~Reductions~~ or ~~Loss~~ at any time prior to, the Closing Date by the Underwriters. Notice of ~~Payments to Securityholders" and "Certain Legal Aspects of the Receivables",~~ such cancellation shall be given to the ~~extent they constitute matters of law~~ Company in writing, or ~~legal conclusions with respect thereto, have been reviewed~~ by ~~such counsel and are correct~~ telephone or telegraph confirmed in ~~all material respects~~writing. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 1 contract

Sources: Underwriting Agreement (TIAA Seasoned Commercial Mortgage Trust 2007-C4)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties on the part of the Depositor (as to itself and the Trust) herein, to the accuracy of the statements of officers of the Depositor (as to itself and the Trust) made pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions precedent: (a) The Prospectus and any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to 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 overtly threatened or, to the knowledge of the Depositor or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law. (b) On or prior to the Closing Date, you shall have received ~~a letter~~letters, dated as of the date hereof and the Closing Date, respectively, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the ~~Depositor,~~ Depositor or the ~~Company, DaimlerChrysler Corporation or DaimlerChrysler AG~~ Company which, in the reasonable judgment of the ~~Underwriters~~Representative, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of ~~DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or~~ the Depositor on any exchange or in the ~~over-the-~~over the counter market; , (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the ~~Underwriters~~Representative, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of ~~DCFS~~ CFSA and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and reasonably satisfactory in form and substance to you and your counsel, to the effect that: (i) ~~DCFS~~ CFSA has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, except where the failure to have such organizational power and authority would not have a material adverse effect on its ability to perform under the Basic Documents (as defined below) to which it is a party, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of ~~Michigan~~ Delaware with full power and authority to own its properties and conduct its business as presently conducted by it, except where the failure to have such organizational power and authority would not have a material adverse effect on its ability to perform under the Basic Documents to which it is a party, and to enter into and perform its obligations under the ~~Trust Agreement and the~~ Purchase Agreement~~, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments~~. (iii) Each of ~~DCFS~~ CFSA and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which it does business and in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture ~~Trustee~~Trustee and except where the failure to be so qualified or licensed would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) Depositor. The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtCFSA. (~~vii~~v) This Agreement has been duly authorized, executed and delivered by ~~DCFS~~CFSA. (~~viii~~vi) The Purchase Agreement ~~and the Trust Agreement have~~ has been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtCompany. (ixvii) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by ~~DCFS~~CFSA, nor the execution and delivery of ~~the Trust Agreement and~~ the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "“Basic Documents"”), nor the fulfillment of the terms thereof by ~~DCFS~~CFSA, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of ~~DCFS~~ CFSA or the Company, or of any indenture or other material agreement or ~~material~~ instrument to which ~~DCFS~~ CFSA or the Company is a party or by which ~~either~~ any of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to ~~DCFS~~ CFSA or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over ~~either~~ any of them, or result in the creation of any lien upon any material property or assets of CFSA (other than pursuant to the Basic Documents). (xviii) There are no actions, proceedings or investigations pending or, to the best of such counsel's ’s knowledge after due inquiry, threatened before any court, administrative ~~agency~~ agency, body or official, arbitrator or other tribunal (1) asserting the invalidity of the ~~Trust or~~ Trust, any of the Basic ~~Documents~~Documents or the Notes, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by ~~DCFS~~ CFSA of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase ~~Agreement~~ Agreement, or (5) that might materially and adversely affect the performance by the Trust of its obligations under, or the ~~Trust Agreement~~validity or enforceability of, the Notes. (xiix) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no material default exists and no event has occurred which, with notice, lapse of time or both, would constitute a material default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which ~~either~~ any of them is bound, which material default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (~~xii~~x) Nothing has come to such counsel's ’s attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement ~~and the Trust Agreement~~ are other than as stated therein or (y) ~~DCFS~~ CFSA contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (~~xiii~~xi) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (~~xiv~~xii) ~~Immediately prior to~~ To the ~~transfer~~ extent that Article 9 of the ~~Receivables to the Trust, the Depositor's interest~~ Uniform Commercial Code as in effect in the ~~Receivables,~~ State of Michigan (the “UCC”) is applicable (without regard to conflict of laws principles) and assuming that the security ~~interests~~ interest created by the Sale and Servicing Agreement in the ~~Financed Vehicles securing the~~ Receivables has been duly created and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivableshas attached, ~~the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected~~ upon the filing of ~~the~~ a UCC-1 financing ~~statements~~ statement with the Secretary of State of the State of ~~Delaware and~~ Michigan, the Trust will ~~constitute~~ have a ~~first priority~~ perfected security interest ~~therein~~in the Seller’s rights in such Receivables and the proceeds thereof, and such security interest will be prior to any other security interest granted by the Seller that is perfected solely by the filing of a financing statement under the UCC, excluding: (a) purchase money security interests under Section 9-324 of the UCC; and (b) temporarily perfected security interests in proceeds under Section 9-315 of the UCC, subject to the proviso that the Trust may not have a perfected security interest in the Vehicles in some states because certificates of title to the Financed Vehicles will not be amended to reflect the assignment to the Trust. No filing or other action, other than the filing of the UCC-1 financing ~~statements~~ statement with the Secretary of State of the State of ~~Delaware~~ Michigan referred to above, and the filing of continuation statements at five year intervals, is necessary to perfect and maintain the interest or the security interest of the ~~Indenture Trustee~~ Trust in the Receivables, the security interests in the Financed Vehicles securing the ~~Receivables~~ Receivables, and the proceeds of each of the foregoing against third parties. Notwithstanding any other statements in this opinion, such counsel does not express any opinion as to the perfection or priority of any security interest in (i) receivables other than the Receivables transferred to the Trust on the Closing Date or (ii) proceeds except for identifiable proceeds, subject, however, to the limitations of Section 9-315 of the UCC; and such counsel does not express any opinion as to the certain circumstances described in Sections 9-320 and 9-330 of the UCC wherein purchasers of Financed Vehicles or Receivables may take the Financed Vehicles or Receivables free of a perfected security interest, as to certain circumstances described in Sections 9-303, 9-316, 9-317 and 9-337 where a Financed Vehicle may have been relocated, or where a Financed Vehicle becomes subject to a mechanic’s lien, tax lien, or confiscation by government authorities under certain circumstances. In addition, such counsel has assumed that (i) no financing statement, amendment, or termination statement, other than the financing statement listing CFSA or the Trust as debtor or seller and describing any portion of the Trust Estate, has been filed with the Secretary of State of the State of Michigan since the date and time any Article 9 UCC search was performed as a part of this transaction and (ii) the requirements of Section 9-104 of the UCC have been complied with. (~~xvi~~xiii) The Receivables are tangible chattel ~~paper~~ paper, as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviiixiv) The statements in the Preliminary Prospectus and the Prospectus under the headings "“Risk Factors -- — Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" ” and ~~"--~~ “— Insolvency of the ~~Depositor~~ Depositor, Residual Holdco, or a Trust May Result in Delays, Reductions or Loss of Payments to Securityholders" ” and "“Certain Legal Aspects of the Receivables"”, 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. (~~xix~~xv) The statements contained in the Preliminary Prospectus and the Prospectus and any supplement thereto under the headings "“Payments on the Notes"”, "“Payments on the Securities"”, "“Form of Securities and Transfers"”, "“Principal Documents"”, "“Sale Provisions"”, "“Servicing" ” and "“The Indenture"”, insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the ~~Purchase Agreement, the~~ Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 1 contract

Sources: Underwriting Agreement (Chrysler Financial Auto Securitization Trust 2010-A)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase ~~and pay for~~ the ~~Offered Notes will~~ Trust Preferred Securities shall be subject to the accuracy of the representations and warranties on the part of each of the ~~Depositor herein~~Guarantor and the Trust contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of ~~officers of~~ the ~~Depositor~~ Guarantor and the Trust made in any certificates pursuant to the provisions hereof, to the performance by each of the ~~Depositor~~ Guarantor and the Trust of its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The Prospectus ~~and any supplements thereto~~ shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(A)(a) hereof; the ~~Rules and Regulations and~~ final term sheet contemplated by Section ~~7(a~~5(A)(a) hereof, and ~~prior~~ any other material required to be filed by the ~~Closing Date~~Guarantor or the Trust pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or, to~~ initiated or threatened by the ~~knowledge~~ Commission; no stop order suspending or preventing the use of the ~~Depositor~~ Prospectus or ~~you,~~ any Issuer Free Writing Prospectus shall ~~be contemplated~~ have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission ~~or by any authority administering any state securities or blue sky law~~shall have been complied with to your reasonable satisfaction. (b) ~~On or prior~~ A▇▇▇▇▇ & Bird LLP, counsel for the Guarantor, shall have furnished to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received Underwriters an ~~opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee~~opinion, dated the Closing ~~Date and satisfactory in form and substance to you and your counsel~~Date, to the effect that: (i) ~~DCFS has been duly organized and~~ The Guarantor is validly existing as a ~~limited liability company~~ corporation in good standing under the laws of the State of ~~Michigan~~ Delaware, and is duly registered as a bank holding company and a financial holding company under the Bank Holding Company Act of 1956, as amended, with ~~full~~ corporate power and authority to own or lease its properties and conduct its business as ~~presently conducted by it, and to enter into and perform its obligations under this Agreement,~~ described in the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.Prospectus; (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by ~~DCFS.~~the Guarantor and the Trust; (~~viii~~iii) ~~The Purchase Agreement~~ Each of the Declaration of Trust, the Indenture and the ~~Trust~~ Guarantee Agreement ~~have~~ has been duly and validly authorized, executed and delivered by the ~~Company~~ Guarantor and ~~are the legal,~~ constitutes a valid and binding ~~obligations~~ agreement of the ~~Company~~ Guarantor, enforceable ~~against the Company~~ in accordance with ~~their~~ its terms, ~~except (x) the enforceability thereof may be~~ subject to bankruptcy, insolvency, reorganization, ~~moratorium or other~~ moratorium, fraudulent transfer and conveyance and similar laws ~~now or hereafter in effect relating to creditors'~~ affecting the rights and remedies of creditors generally, and the effects of general principles of equity (yregardless of whether enforcement is considered in a proceeding at law or equity); and each of the Declaration of Trust, the Indenture and the Guarantee Agreement has been duly qualified under the Trust Indenture Act; (iv) The issuance, execution and delivery of the ~~remedy~~ Junior Subordinated Notes have been duly and validly authorized by the Guarantor and, when authenticated by the Issuer Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of ~~specific performance~~ the Guarantor, entitled to the benefits of the Indenture and ~~injunctive~~ enforceable against the Guarantor in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and conveyance and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity (regardless of whether enforcement is considered in a proceeding as law or equity); (v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “The Trust, ” “Description of the Trust Preferred Securities,” “Description of the Junior Subordinated Notes,” “Guarantee of the Trust Preferred Securities,” “Replacement Capital Covenant,” “Regions Trusts,” “Description of Debt Securities,” “Description of Preferred Securities of the Trusts,” “Description of Trust Guarantees,” and “Effect of Obligations under the Subordinated Debt Securities and the Trust Guarantees,” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; (vi) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Certain United States Federal Income Tax Consequences” and “ERISA Considerations,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974 and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects; (vii) Neither the Trust nor the Guarantor is and, after giving effect to the offering and sale of the Trust Preferred Securities and the Junior Subordinated Notes and the application of the proceeds thereof, will be an “investment company,” as such term is defined in the Investment Company Act; (viii) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Trust or the Guarantor prior to the Time of Delivery, excluding in each case the documents incorporated by reference therein (other than the financial statements and related schedules and other ~~forms of equitable relief may be subject~~ financial information contained therein or omitted therefrom and each Form T-1, as to ~~equitable defenses and~~ which such counsel need express no opinion) comply as to form in all material respects with the ~~discretion~~ requirements of the ~~court before which any proceeding therefor may be brought.~~Securities Act and the Trust Indenture Act and the rules and regulations thereunder; (ix) ~~Neither~~ Although they do not assume any responsibility for the ~~transfer~~ accuracy, completeness or fairness of the ~~Receivables from~~ statements contained in the ~~Depositor~~ Registration Statement, the Pricing Prospectus or the Prospectus, except for those referred to in the opinion in subsections (v) and (vi) of this Section 6(b), they have no reason to believe (i) that any part of the Registration Statement or any further amendment thereto made by the Guarantor prior to the Time of Delivery (other than the financial statements and related schedules therein and other financial information contained therein or omitted therefrom and each Form T-1, as to which such counsel need express no opinion), when such part or amendment 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; (ii) that the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted 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 (iii) that, as of its date and as of the Time of Delivery, the Prospectus or any further amendment or supplement thereto made by the Guarantor prior to the Time of Delivery (other than the financial statements and related schedules therein and other financial information contained therein or omitted therefrom and each Form T-1, as to which such counsel need express no opinion) contained or contains an 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; (c) The Guarantor shall have furnished to the Underwriters an opinion, dated the Closing Date, of C▇▇▇ ▇. ▇▇▇▇▇▇, Assistant General Counsel of the Guarantor, to the effect that: (i) The Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus; (ii) The Guarantor has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction (except in any case in which the failure so to file would not reasonably be expected to have a Material Adverse Effect); (iii) Each Significant Subsidiary of the Guarantor has been duly incorporated and is validly existing as a corporation or bank, as applicable, in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors qualifying shares and as otherwise set forth in the Prospectus), are owned directly or indirectly by the Guarantor free and clear of all liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Guarantor or its Significant Subsidiaries, provided that such counsel shall state that they believe that both the Guarantor and the Underwriters are justified in relying upon such opinions and certificates); (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 Guarantor or any of its Significant Subsidiaries or the Trust is a party or of which any property of the Guarantor or any of its Significant Subsidiaries or the Trust is the subject which is reasonably likely to be adversely determined against the Guarantor or any of its subsidiaries or the Trust and, if determined adversely to the Guarantor or any of its subsidiaries or the Trust, ~~nor~~ would individually or in the ~~assignment~~ aggregate have a material adverse effect on the current or future consolidated financial position, stockholders’ equity or results of operations of the ~~Owner Trust Estate~~ Guarantor and its Significant Subsidiaries, taken as a whole, or of the Trust; and, to such counsel’s knowledge, no such proceedings are threatened by governmental authorities; (v) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Guarantor prior to the ~~Trust~~Time of Delivery (other than the financial statements and related schedules therein, ~~nor~~ as to which such counsel need express no opinion), when they became effective or were filed with the ~~grant~~ Commission, as the case may be, complied as to form in all material respects with the requirements of the ~~security interest~~ Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and they have no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the ~~Collateral~~ case of a registration statement which became effective under the Securities Act, 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, in the case of other documents which were filed under the Securities Act or the Exchange Act with the Commission, an 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 when such documents were so filed, not misleading; (vi) To such counsel’s knowledge, there is no amendment to the ~~Indenture Trustee pursuant~~ Registration Statement required to be filed and there are no contracts or other documents of a character required to be filed as an exhibit to the ~~Indenture~~Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement, ~~nor~~ the Basic Prospectus or the Prospectus which are not filed or incorporated by reference or described as required; (vii) The execution and delivery of this Agreement, the ~~Purchase~~ Declaration of Trust, the Indenture and the Guarantee Agreement, the ~~Trust Agreement~~issuance and sale of the Junior Subordinated Notes, the ~~Administration Agreement, or the Sale~~ Trust Preferred Securities and ~~Servicing Agreement by DCFS, nor the execution and delivery of~~ the Trust ~~Agreement~~ Common Securities and ~~the Purchase Agreement by the Company, nor~~ the consummation of ~~any~~ the transactions ~~contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale~~ and ~~Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment~~ performance of the ~~terms thereof by DCFS, the Company or the Trust, as the case may be,~~ obligations herein and therein contemplated will not conflict ~~with,~~ with or result in a ~~material breach,~~ breach or violation of (A) any of the terms or ~~acceleration~~ provisions of, or constitute a default under, any ~~term~~ indenture, mortgage, deed of trust, loan agreement or ~~provision~~ other agreement or instrument known to such counsel to which the Guarantor, the Trust, or any Significant Subsidiary of the ~~articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company~~ Guarantor is a party or by which ~~either of them is bound~~the Guarantor, the Trust, or ~~result in a violation~~ any Significant Subsidiary of the Guarantor is bound or ~~contravene~~ to which any of the ~~terms~~ property or assets of the Guarantor, the Trust, or any ~~statute~~Significant Subsidiary of the Guarantor is subject, ~~order~~ (B) the Restated Certificate of Incorporation, as amended, or ~~regulation applicable to DCFS~~ By-laws of the Guarantor or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity organizational documents of the Trust or any Significant Subsidiary of the ~~Basic Documents~~Guarantor, or (2C) ~~seeking~~ any statute or any order, rule or regulation known to ~~prevent~~ such counsel of any court or governmental agency or body having jurisdiction over the Guarantor, the Trust or any Significant Subsidiary of the Guarantor or any of their properties, except in the case of (A) and (C), such violations or default which would either individually or in the aggregate with all other violations and defaults referred to in this paragraph (if any), reasonably be expected to result in a Material Adverse Effect; and (viii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Trust Preferred Securities or the Junior Subordinated Notes or the consummation ~~of any~~ by the Guarantor and the Trust of the transactions contemplated by ~~any~~ the Underwriting Agreement, except such as have been obtained under the Securities Act and such consents, approvals, authorizations, or registrations as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust ~~Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance~~ Preferred Securities by the ~~Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement.~~Underwriters; (xid) ~~To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto)~~R▇▇▇▇▇▇▇, ~~no default exists and no event has occurred which~~▇▇▇▇▇▇ & Finger, ~~with notice~~P.A., lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such special Delaware counsel to ~~believe that~~ the ~~representations~~ Guarantor and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, ~~pursuant~~ shall have furnished to the ~~Sale and Servicing Agreement~~Underwriters an opinion, ~~vests in~~ dated the ~~Trust all interests that are purported to be conveyed thereby~~Closing Date, ~~free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant~~ to the ~~Sale and Servicing Agreement or any other Basic Document.~~effect that: (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xvi) The ~~Indenture constitutes a grant by~~ Trust has been duly created and is validly existing and in good standing under the Delaware Statutory Trust to Act and all filings required under the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State laws of the State of Delaware with respect to the creation and ~~will constitute a first priority perfected security interest therein. No filing or other action, other than the filing~~ valid existence of the ~~UCC-1 financing statements with~~ Trust as a statutory trust have been made; (ii) Under the ~~Secretary of State of the State of~~ Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables Statutory Trust Act and the ~~proceeds~~ Declaration of ~~each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement~~Trust, the Trust ~~Agreement~~has the trust power and authority to own its property and conduct its business, all as described in the Prospectus; (iii) The provisions of the Declaration of Trust, including the terms of the Trust Preferred Securities, are permitted under the Delaware Statutory Trust Act and the Declaration of Trust constitutes a valid and binding obligation of the Guarantor and the Trustees, enforceable against the Guarantor and the Trustees in accordance with its terms, subject, as to enforcement, to the effect upon the Declaration of Trust of (i) bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation, fraudulent conveyance or transfer and other similar laws relating to or affecting the rights and remedies of creditors generally, (ii) principles of equity, including applicable law relating to fiduciary duties (regardless of whether considered and applied in a proceeding in equity or at law), and (iii) applicable public policy on the enforceability of provisions relating to indemnification or contribution; (iv) Under the Delaware Statutory Trust Act and the Declaration of Trust, the ~~Indenture,~~ Trust has the ~~Purchase~~ trust power and authority to (x) execute and deliver this Agreement and the ~~Administration~~ Expense Agreement ~~conform in all material respects with the descriptions thereof contained in the Prospectus (~~and ~~any supplement thereto). (xviii) The statements in the Prospectus~~ to perform its obligations under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing this Agreement and the ~~Trust~~ Expense Agreement, ~~constitute a fair summary~~ and (y) issue and perform its obligations under the Trust Preferred Securities and the Trust Common Securities; (v) Under the Delaware Statutory Trust Act and the Declaration of ~~such documents.~~T

Appears in 1 contract

Sources: Underwriting Agreement (Regions Financial Corp)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of (a) Liberty, LIG and PMMC, and (b) Basis, Basis Investment) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Depositor’s knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and W▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of W▇▇▇▇ Fargo Bank, signed by an authorized officer of W▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of W▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifW▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to W▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of W▇▇▇▇ Fargo Bank, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of W▇▇▇▇ Fargo Bank, 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 W▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of W▇▇▇▇ Fargo Bank 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 W▇▇▇▇ Fargo Bank) of the articles of association and by-laws of W▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of W▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to W▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company~~ result of which they have determined that the information of an accounting, financial or statistical nature set forth (A) in ~~good standing~~ the Preliminary FWP and Prospectus Supplement under the ~~laws~~ captions “Summary,” “Description of the ~~State~~ Mortgage Pool” and “Yield and Maturity Considerations”, (B) on Annexes A-1, A-2 and A-3 to each of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement,~~ the ~~Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement,~~ Prospectus Supplement and the ~~Administration Agreement~~Preliminary FWP, (C) in the Term Sheet and ~~had at all times~~(D) in the Pre-Pricing FWPs agrees with the Master Tapes prepared by or on behalf of the Mortgage Loan Sellers, ~~and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.~~unless non-material deviations are otherwise noted in such letter; and (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws~~ they have compared an agreed-upon portion of the ~~State of Michigan with full power~~ data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in the Mortgage Loan files and ~~authority to own its properties and conduct its business~~ in such other sources as ~~presently conducted~~ shall be specified by ~~it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement~~them, and ~~had at~~ found such data and information to be in agreement in all ~~times~~material respects, ~~and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments~~unless non-material deviations are otherwise noted in such letter. (~~iii~~j) ~~Each~~ You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Underwritten Certificates on the Closing Date are as described in Section 1(a)(xv) and that, as of ~~DCFS and~~ the ~~Company is duly qualified to do business and is~~ Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in ~~good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain~~ such ~~licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee~~ratings. (ivk) ~~The direction by~~ You shall have received from the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity Secretary or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion an Assistant Secretary of the ~~court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized~~Trustee, ~~executed and delivered by DCFS. (viii) The Purchase Agreement and~~ in his individual capacity, a certificate, dated the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending orClosing Date, to the ~~best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting~~ effect that the ~~invalidity of~~ information under the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth heading “Transaction Parties—The Trustee” in the Prospectus (Supplement is true and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator, Tax Administrator, Certificate Registrar and Custodian” in the Prospectus Supplement is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus Supplement is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus Supplement, is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of PAR, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to PAR under the heading “Transaction Parties—Additional Primary Servicer” in the Prospectus Supplement, is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Trust Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Trust Advisor under the heading “Transaction Parties—The Trust Advisor” in the Prospectus Supplement, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Trust Advisor, the Trustee, PAR and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Underwritten Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2015-C31)

Conditions to the Obligations of the Underwriters. The ~~obligations~~ Representative ▇▇▇▇▇▇ enters into this Bond Purchase Agreement in reliance upon the representations and warranties of the ~~Underwriters~~ City and the Authority contained herein and the representations and warranties to ~~purchase~~ be contained in the documents and instruments to be delivered at the Closing and upon the performance by the Authority and the City of their obligations both on and as of the date hereof and as of the Closing Date. Accordingly, the Underwriters' obligations under this Bond Purchase Agreement to purchase, to accept delivery of and to pay for the ~~Offered Notes will~~ 2013B Bonds shall be subject to the accuracy of the representations and warranties ~~on the part~~ of the ~~Depositor herein~~Authority and the 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 officers and other officials of the ~~Depositor~~ Authority and the City made in any certificate or other document furnished pursuant to the provisions hereof, to the performance by the ~~Depositor~~ Authority and the City of ~~its~~ their respective obligations to be performed hereunder and to under the following additional conditions precedent: (a) The Prospectus and any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to 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 Depositor or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law. (b) On Legal Documents at or prior to the Closing Date, ~~you~~ and also shall be subject to the following additional conditions: (a) The Authority shall deliver, or cause to be delivered, the 2013B Bonds to the Representative, as provided in this Bond Purchase Agreement. (b) At the Closing, the Legal Documents shall have ~~received a letter~~been duly authorized, ~~dated~~ executed and delivered by the respective parties thereto, and the Official Statement shall have been duly authorized, executed and delivered by the Authority and by the City, all in substantially the forms submitted to the Representative, with only such changes as shall have been agreed to in writing by the Representative, and shall be in full force and effect; and there shall be in full force and effect such resolution or resolutions of the City Council of the City and of the Governing Board of the Authority as, in the opinion of ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, San Francisco, California ("Bond Counsel"), shall be necessary or appropriate in connection with the transactions contemplated hereby; (c) Between the date hereof and the Closing Date, the market price or marketability of ~~KPMG LLP~~the 2013B Bonds, ~~certified public accountants, substantially~~ at the initial offering prices set forth in the ~~form of~~ Official Statement, or the ~~drafts~~ Underwriters' ability to ~~which you have previously agreed~~ process and ~~otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or~~settle transactions, ~~if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there~~ shall not have ~~occurred~~ been materially adversely affected, in the reasonable judgment of the Representative (ievidenced by a written notice from the Representative to the Authority and the City terminating the obligation of the Underwriters to accept delivery of and make any payment for the 2013B Bonds), by reason of any of the following: (1) an amendment to the Constitution of the United States or the State of California shall have been passed or legislation shall have been introduced in or enacted by the Congress of the United States or the legislature of any ~~change~~ state having jurisdiction of the subject matter or legislation pending in the Congress of the United States shall have been amended or legislation shall have been recommended to the Congress of the United States or to any state having jurisdiction of the subject matter or otherwise endorsed for passage (by press release, other form of notice or otherwise) by the President of the United States, the Treasury Department of the United States, the Internal Revenue Service or the Chairman or ranking minority member of the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of Representatives, or legislation shall have been proposed for consideration by either such Committee by any member thereof or presented as an option for consideration by either such Committee by the staff of such Committee or by the staff of the joint Committee on Taxation of the Congress of the United States, or legislation shall have been favorably reported for passage to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or a decision shall have been rendered by a court of the United States or of the State of California or the Tax Court of the United States, or a ruling shall have been made or a regulation or temporary regulation shall have been proposed or made or any ~~development involving a prospective change in~~ other release or ~~affecting particularly~~ announcement shall have been made by the ~~business or properties~~ Treasury Department of the ~~Trust~~United States, the ~~Depositor~~Internal Revenue Service or other federal or State of California authority, with respect to federal or State of California taxation upon revenues or other income of the ~~Company, DaimlerChrysler Corporation~~ general character to be derived by the Authority and City or ~~DaimlerChrysler AG~~ upon interest received on obligations of the general character of the 2013B Bonds which, in the judgment of the ~~Underwriters~~Representative, may have the purpose or effect, directly or, indirectly, of affecting the tax status of the Authority or the City, its property or income, its securities (including the 2013B Bonds) or the interest thereon, or any tax exemption granted or authorized by State of California legislation; (2) the declaration of war or engagement in or escalation of major military hostilities by the United States or the occurrences or escalation of any other national or international emergency, calamity, or crisis affecting the operation of the government of or the financial community or credit markets in the United States; (3) the declaration of a general banking moratorium by federal, New York or California authorities, the general suspension of trading on any national securities exchange, or a major financial crisis or a material disruption in commercial banking in securities settlement or clearance services shall have occurred; (4) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the 2013B Bonds or obligations of the general character of the 2013B Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of underwriters or broker-dealers; (5) legislation enacted (or resolution passed) by or introduced or pending legislation amended in the Congress or recommended for passage by the President of the United States, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed) or press release issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the 2013B Bonds, or the 2013B Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Trust Agreement is not exempt from qualification under the Trust Indenture Act of 1939, as amended, or that the execution, offering or sale of obligations of the general character of the 2013B Bonds, or of the 2013B Bonds, including any or all underlying arrangements, as contemplated hereby or by the Official Statement, otherwise is or would be in violation of the federal securities laws as amended and then in effect; (6) the withdrawal or downgrading of any rating assigned to the 2013B Bonds by Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), ▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇'▇") or ▇▇▇▇▇ Ratings ("Fitch"); (7) there is a withdrawal or downgrading of any rating on any of the City's obligations substantially similar to the 2013B Bonds; (8) any event occurring, or information becoming known that, in the judgment of the Representative, makes untrue in any material respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of a material fact 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 (9) any change in, or particularly affecting, the Authority or the City, the Law, the Legal Documents or the Revenues, as the foregoing matters are described in the Official Statement, which in the professional judgment of the Representative materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States2013B Bonds. (d) ~~You~~ At or prior to the Closing Date, the Representative shall have received an the following instruments and documents, in each case satisfactory in form and substance to the Representative and its counsel: (1) Copies of the Legal Documents (excluding the 2013B Bonds) each duly executed and delivered by the respective parties thereto; (2) The approving opinion of ~~in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee~~Bond Counsel, dated the Closing Date and ~~satisfactory~~ addressed to the Authority, in substantially the form attached to the Official Statement as Appendix E, and a letter of Bond Counsel, dated the Closing Date and addressed to the Representative to the effect that such opinion may be relied upon by the Representative to the same extent as if such opinion were addressed to the Representative; (3) The supplemental opinion of Bond Counsel, dated the Closing Date and addressed to the Representative, in a form acceptable to the Representative, substantially to the effect that (i) this Bond Purchase Agreement has been duly authorized, executed and delivered by the City and the Authority, respectively, and (assuming due authorization, execution and delivery by and validity with respect to the Representative) constitutes a valid, legal and binding obligation of the City and the Authority, respectively, subject to laws relating to bankruptcy or other laws affecting creditors rights, to the application of equitable principles whether or not equitable remedies are sought, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against public bodies in the State of California; (ii) the 2013B Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Trust Agreement is exempt from qualification under the Trust Indenture Act of 1939, as amended; and (iii) the statements contained in the Official Statement under the captions "INTRODUCTION," "THE SERIES 2013B BONDS," "SECURITY AND SOURCES OF PAYMENT FOR THE SERIES 2013B BONDS," (excluding the information under the caption "Investment Policy"), "TAX MATTERS," and in Appendix D – "SUMMARY OF CERTAIN PROVISIONS OF THE PRINCIPAL LEGAL DOCUMENTS" and Appendix F – "PROPOSED FORM OF OPINION OF BOND COUNSEL," excluding any material that may be treated as included under such captions by cross-reference, insofar as such statements expressly summarize certain provisions of the Legal Documents and the form and ~~substance~~ content of Bond Counsel's opinion relating to ~~you~~ the 2013B Bonds, are accurate in all material respects; (4) The opinion of ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, San Francisco, California, as disclosure counsel, dated the Closing Date and ~~your counsel~~addressed to the Authority, the City and the Representative, to the effect that, based upon the information made available to it in the course of its participation in the preparation of the Official Statement and without passing on and without assuming any responsibility for the accuracy, completeness and fairness of the statements in the Official Statement, and having made no independent investigation or verification thereof, it is of the opinion, subject to the limitations expressed, that it has no reason to believe that the Official Statement as of its date and as of the Closing Date (except for any financial, engineering, numerical and statistical data or forecasts, estimates, projections, assumptions or expressions of opinion, the information relating to DTC and its book-entry system contained in the Official Statement, as to all of which such firm expresses no opinion) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (5) The opinion of the City Attorney, as counsel for the Authority, dated the Closing Date and addressed to the Representative, to the effect that: (i) ~~DCFS has been~~ the Authority is a joint powers authority duly organized and ~~is validly existing as a limited liability company in good standing under~~ operating pursuant to the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.California; (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ the ~~laws~~ resolution or resolutions of the ~~State~~ Authority (the "Authority Resolutions") approving and authorizing the execution and delivery by the Authority of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under~~ the ~~Trust~~ Legal Documents, the Bond Purchase Agreement and the ~~Purchase Agreement,~~ Official Statement were duly adopted at meetings of the Board of the Authority that were called and ~~had~~ held pursuant to law and with all public notice required by law and at ~~all times,~~ which a quorum was present and ~~now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments.~~acting throughout; (iii) ~~Each~~ there is no action, suit, proceeding or investigation (other than as disclosed in the Official Statement) at law or in equity before or by any court, public board or body, that has been served on the Authority and that is now pending or, to the best knowledge of ~~DCFS and~~ such counsel after reasonable investigation, threatened against or affecting the ~~Company is duly qualified to do business and is in good standing~~existence or powers of the Authority, ~~and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify~~ or ~~to obtain such licenses~~ contesting or ~~approvals would render any Receivable unenforceable by~~ affecting the ~~Depositor,~~ validity of the ~~Owner Trustee~~ 2013B Bonds or the ~~Indenture Trustee.~~enforceability of the other Legal Documents or the Bond Purchase Agreement; (iv) ~~The direction~~ the execution and delivery of the Legal Documents, the Bond Purchase Agreement and the Official Statement, the adoption of the Authority Resolutions, and compliance by the ~~Depositor~~ Authority with the provisions of the foregoing, under the circumstances contemplated thereby, do not and will not conflict with or constitute on the part of the Authority a breach or default under (a) any agreement or other instrument to which the ~~Owner Trustee to authenticate~~ Authority is a party (and of which such counsel is aware after reasonable investigation) or by which it is bound (and of which such counsel is aware after reasonable investigation), which conflict, breach or default would have a materially adverse effect on the ~~Certificates has been duly authorized~~ transactions contemplated hereby and by the ~~Depositor and~~Official Statement or on the Authority's liabilities and obligations under the Legal Documents to which it is a party, ~~when~~ (b) any existing law or regulation to which the ~~Certificates~~ Authority is subject, which conflict, breach or default would have ~~been duly executed, authenticated~~ a materially adverse effect on the transactions contemplated hereby and ~~delivered~~ by the ~~Owner Trustee in accordance with~~ Official Statement or on the ~~Trust Agreement~~ Authority's liabilities and ~~delivered~~obligations under the Legal Documents to which it is a party, or (c) any court order or consent decree to which the ~~Certificates will be duly issued~~ Authority is subject (and ~~entitled to~~ of which such counsel is aware after reasonable investigation), which conflict, breach or default would have a materially adverse effect on the ~~benefits~~ transactions contemplated hereby and ~~security afforded~~ by the ~~Trust Agreement, subject as~~ Official Statement or on the Authority's liabilities and obligations under the Legal Documents to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies which it is ~~considered in~~ a ~~proceeding in equity or at law).~~party; (v) ~~The direction by~~ the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement Official Statement has been duly authorized, executed and delivered by ~~DCFS. (viii) The Purchase Agreement~~ the Authority, and the ~~Trust~~ Legal Documents and the Bond Purchase Agreement have been duly authorized, executed and delivered by the ~~Company~~ Authority and, assuming due authorization, execution and ~~are~~ delivery by the other parties thereto, constitute legal, valid and binding ~~obligations~~ agreements of the ~~Company~~ Authority enforceable ~~against the Company~~ in accordance with their respective terms, ~~except (x) the enforceability thereof may be~~ subject to bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or and other ~~similar~~ laws ~~now or hereafter in effect relating to~~ affecting the enforcement of creditors' rights ~~and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses~~ in general and to the application of equitable principles, whether or not equitable remedies are sought, and to the exercise of judicial discretion of in appropriate cases and to the ~~court before which any proceeding therefor may be brought.~~limitations on legal remedies against public entities in the State, including the City and the Authority; (ixvi) ~~Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest~~ except as described in the ~~Collateral to the Indenture Trustee pursuant to the Indenture~~Official Statement, ~~nor the execution and delivery of this Agreement~~no authorization, ~~the Purchase Agreement~~approval, ~~the Trust Agreement, the Administration Agreement~~consent, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other ~~material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute,~~ order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of ~~Delaware and will constitute a first priority perfected security interest therein. No filing~~ California or any other ~~action, other than the filing of the UCC-1 financing statements with the Secretary of State of~~ governmental authority or agency within the State of ~~Delaware referred to above~~California having jurisdiction over the Authority is required for the valid authorization, ~~is necessary to perfect~~ execution, delivery and ~~maintain~~ performance by the ~~interest~~ Authority of the Legal Documents, the Official Statement or the ~~security interest~~ Bond Purchase Agreement or for the adoption of the ~~Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties.~~Authority Resolutions that has not been obtained; and (~~xvi~~vii) ~~The Receivables are tangible chattel paper~~ solely as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.stat

Appears in 1 contract

Sources: Bond Purchase Agreement

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; and to (iv) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Depositor’s knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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 ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel in or special counsel for the ~~office of the General Counsel of DCFS and the Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company~~ result of which they have determined that the information of an accounting, financial or statistical nature set forth in ~~good standing~~ the Preliminary FWP and Prospectus Supplement under the ~~laws~~ captions “Summary”, “Description of the ~~State~~ Mortgage Pool” and “Yield and Maturity Considerations” and on Annexes A-1, A-2 and A-3 to each of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement,~~ the ~~Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement,~~ Prospectus Supplement and the ~~Administration Agreement~~Preliminary FWP and in the Pre-Pricing FWP and the Term Sheet agrees with the Master Tapes prepared by or on behalf of the Mortgage Loan Sellers, ~~and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.~~unless non-material deviations are otherwise noted in such letter; and (ii) ~~The Company has been duly organized and is validly existing as a limited liability company~~ they have compared the data contained in ~~good standing under~~ the ~~laws~~ Master Tapes referred to in the immediately preceding clause (i) to information contained in an agreed upon sampling of the ~~State of Michigan with full power~~ Mortgage Loan files and ~~authority to own its properties and conduct its business~~ in such other sources as ~~presently conducted~~ shall be specified by ~~it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement~~them, and ~~had at~~ found such data and information to be in agreement in all ~~times~~material respects, ~~and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments~~unless non-material deviations are otherwise noted in such letter. (~~iii~~j) ~~Each~~ You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Underwritten Certificates on the Closing Date are as described in Section 1(a)(xv) and that, as of ~~DCFS and~~ the ~~Company is duly qualified to do business and is~~ Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in ~~good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain~~ such ~~licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee~~ratings. (ivk) ~~The direction by~~ You shall have received from the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity Secretary or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion an Assistant Secretary of the ~~court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized~~Trustee, ~~executed and delivered by DCFS. (viii) The Purchase Agreement and~~ in his individual capacity, a certificate, dated the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending orClosing Date, to the ~~best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting~~ effect that the ~~invalidity of~~ information under the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth heading “Transaction Parties—The Trustee” in the Prospectus (Supplement is true and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator, Tax Administrator, Certificate Registrar and Custodian” in the Prospectus Supplement is true and ~~any supplement thereto~~ correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the General Master ▇▇▇▇▇▇▇▇, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the heading “Transaction Parties—The Master Servicers—▇▇▇▇▇ Fargo Bank, National Association” in the Prospectus Supplement is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the General Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Special Servicer under the heading “Transaction Parties—The Special Servicers—Midland Loan Services, a Division of PNC Bank, National Association” in the Prospectus Supplement, is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the NCB Master Servicer and Co-op Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Master Servicer and Co-op Special Servicer under the headings ~~"Payments on~~ “Transaction Parties—The Master Servicers—NCB, FSB” and “Transaction Parties—The Special Servicers—NCB, FSB” in the ~~Notes"~~Prospectus Supplement, ~~"Payments on~~ is true and correct in all material respects. (p) You shall have received from the ~~Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ Secretary or an Assistant Secretary of the ~~Notes~~Primary Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Primary Servicer under the heading “Transaction Parties—Additional Primary Servicer” in the Prospectus Supplement, is true and correct in all material respects. (q) You shall have received from the Secretary or an Assistant Secretary of the Trust Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Trust Advisor under the heading “Transaction Parties—The Trust Advisor” in the Prospectus Supplement, is true and correct in all material respects. (r) You shall have received from counsel for each Mortgage Loan Seller, the ~~Indenture~~General Master Servicer, the ~~Administration Agreement~~General Special Servicer, the ~~Purchase Agreement~~NCB Master Servicer and Co-op Special Servicer, the ~~Sale and Servicing Agreement~~ Primary Servicer, the Trustee, the Certificate Administrator and the Trust Advisor, a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Underwritten Certificates, the transfer of the Mortgage Loans and any other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. 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, ~~constitute a fair summary~~ if the Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone or telegraph confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (WFRBS Commercial Mortgage Trust 2013-C18)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to ~~purchase and pay for~~ such Designated Securities shall be subject, in the ~~Offered Notes will be subject~~ discretion of the Representatives, to the ~~accuracy of the~~ condition that all representations and warranties ~~on the part~~ and other statements of the ~~Depositor herein~~Company in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, ~~to the accuracy~~ at and as of the ~~statements~~ Time of ~~officers of~~ Delivery for such Designated Securities, true and correct in all material respects, the ~~Depositor made pursuant to~~ condition that the ~~provisions hereof, to the performance by the Depositor~~ Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed, and to the following additional ~~conditions precedent~~conditions: (a) The Prospectus ~~and any supplements thereto~~ in relation to the applicable Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; each Issuer Free Writing Prospectus shall have been filed with the Commission pursuant to Rule 433 within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose or pursuant to Section 8A under the Securities Act shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction. (b) Counsel for the Underwriters shall have furnished to the Representatives such opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the incorporation of the Company, the validity of the Indenture, the Designated Securities, the Registration Statement, the Prospectus as amended or supplemented, the Time of Sale Information and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. (c) The General Counsel of the Company, or other counsel for the Company satisfactory to the Representatives, shall have furnished to the Representatives such counsel’s written opinion, dated the Time of Delivery for such Designated Securities, in form and substance satisfactory to the Representatives, substantially to the effect that: (i) The Company and each Principal Subsidiary has been duly incorporated and each is validly existing as a corporation or other entity under the laws of its jurisdiction of incorporation, has all requisite corporate (or entity) power and authority to own, lease and operate its properties and to conduct its business in all material respects as it is currently being conducted and as described in the Prospectus and the Time of Sale Information; the Company is in good standing under the laws of its jurisdiction of incorporation and is duly qualified and in good standing as a foreign corporation authorized to do business in each jurisdiction listed in an exhibit to such opinion, except where the failure to so qualify would not reasonably be expected to have a Material Adverse Effect; (ii) Each of this Agreement and the Pricing Agreement with respect to the Designated Securities has been duly authorized, executed and delivered by the Company; (iii) To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject and, to the best of such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities, other than as set forth in the Prospectus and the Time of Sale Information and other than those which individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect; (iv) The Designated Securities have been duly authorized by the Company; assuming (a) that they have been duly signed by the manual or facsimile signatures of officers (specified in such opinion) of the Company (provided that counsel shall not make the assumption in this clause (a) with respect to Designated Securities that are global securities), and (b) that the Designated Securities have been duly authenticated by the Trustee under the Indenture, when issued and delivered to the Underwriters in exchange for payment therefor in accordance with the ~~Rules~~ terms of this Agreement, the Designated Securities shall constitute valid and ~~Regulations~~ binding obligations of the Company, entitled to the benefits provided by the Indenture and ~~Section 7(a~~enforceable in accordance with their terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability; and the Designated Securities and the Indenture conform in all material respects to the descriptions thereof in the Prospectus and the Time of Sale Information; (v) ~~hereof~~The Indenture has been duly authorized, executed and delivered by the Company and constitutes the valid and binding obligation of the Company enforceable against the Company in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability; the Indenture has been duly qualified under the Trust Indenture Act; (vi) The statements set forth in the Prospectus and the Time of Sale Information under the captions “Description of Notes” and “Description of Debt Securities” (or similar headings referring to the Designated Securities), insofar as they purport to constitute a summary of the terms of the Securities and the provisions of the documents referred to therein, are accurate summaries of the material terms thereof; (vii) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of the Designated Securities, the Indenture, this Agreement and the Pricing Agreement with respect to the Designated Securities and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute or result in a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other similar agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, other than such as would not reasonably be expected to have a Material Adverse Effect or affect the validity of the Designated Securities or the legal authority of the Company to comply with the Designated Securities, the Indenture, this Agreement or the Pricing Agreement; nor will such actions result in a violation of the provisions of the Certificate of Incorporation, as amended, or the By-laws of the Company; nor will any such action result in a violation of any statute or any order, rule or regulation of any court or governmental agency or body in the United States having jurisdiction over the Company or any of its subsidiaries or any of their properties other than such as would not reasonably be expected to have a Material Adverse Effect or affect the validity of the Designated Securities or the legal authority of the Company to comply with the Designated Securities, the Indenture, this Agreement or the Pricing Agreement (except to the extent that the issue and sale of the Designated Securities as contemplated by this Agreement and the Pricing Agreement and the distribution of the Designated Securities by the Underwriters may result in violations of state securities or Blue Sky laws); and except as set forth in the Registration Statement or the Prospectus, no consent, approval, authorization, order, registration or qualification of or with any New York State or Federal court or any such New York State or Federal regulatory authority or other governmental body having jurisdiction over the Company is required for the issue and sale of the Designated Securities by the Company or the consummation by the Company of the other transactions contemplated by this Agreement or the Pricing Agreement or the Indenture, except such as have been obtained under the Securities Act and the Trust Indenture Act, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters, as to which such counsel need express no opinion; (viii) The 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 became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; (ix) The Registration Statement and the Prospectus as amended or supplemented and any further amendments and supplements thereto made by the Company prior to the ~~Closing Date~~Time of Delivery for the Designated Securities (other than the financial statements and related notes and schedules and other financial, statistical and accounting data contained or incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion) appear on their face to be appropriately responsive in all material respects with the requirements of the Securities Act and the Trust Indenture Act (other than the Trustee’s Statement of Eligibility on Form T-1, as to which such counsel need express no opinion) and the rules and regulations thereunder; and the information included in the Registration Statement in response to Item 10 (insofar as it relates to such counsel) of Form S-3 is to the best of such counsel’s knowledge an accurate statement of the matter therein set forth and fairly presents the information called for with respect to that matter by the Securities Act and the rules and regulations thereunder; (x) The Registration Statement has become effective under the Securities Act; any required filing of the Prospectus pursuant to Rule 424(b) under the Securities Act has been made in the manner and within the time period required by Rule 424(b) under the Securities Act, any required filing of any Issuer Free Writing Prospectus pursuant to Rule 433 under the Securities Act has been made in the manner and within the time period required by Rule 433 and, based solely upon an oral acknowledgment by the staff of the Commission, no stop order suspending the effectiveness of the Registration Statement ~~shall have~~ has been issued ~~and~~ under the Securities Act and, to the best of such counsel’s knowledge, no proceedings for that purpose ~~shall~~ or pursuant to Section 8A of the Securities Act have been ~~instituted or~~initiated or are pending or threatened by the Commission; and (xi) The Company is not and, after giving effect to the ~~knowledge~~ offering and sale of the ~~Depositor~~ Securities and the application of the proceeds thereof as described in the Registration Statement, the Prospectus and the Time of Sale Information, will not be an “investment company” or ~~you~~an entity “controlled” by an “investment company” within the meaning of the Investment Company Act. Such counsel may also state that during the preparation of the Registration Statement, the Prospectus and the Time of Sale Information, such counsel has participated in conferences with officers and other representatives of the Company, representatives of Deloitte & Touche LLP, the Underwriters and their counsel, at which conferences the contents of the Registration Statement, the Prospectus and the Time of Sale Information and related matters were discussed, reviewed and revised. Although such counsel is not passing upon, and does not assume responsibility for, the accuracy, completeness or fairness of such contents (except as expressly indicated in subparagraph (vi) above) and has not made any independent investigation or verification thereof, on the basis of the information which was developed in the course thereof, considered in light of such counsel’s understanding of applicable law and the experience such counsel has gained through its practice thereunder, nothing has come to such counsel’s attention which causes it to believe that: (A) that the Registration Statement or any post-effective amendment thereto, at the time the Registration Statement or any post-effective amendment thereto (including the filing of the Company’s Annual Report on Form 10-K with the Commission) became effective and as of the date hereof, contained any 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, (B) that the Prospectus as of its date and the Time of Delivery included or includes 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 (C) that the Time of Sale Information, at the Time of Sale (which the Representatives have informed such counsel was the time prior to the first use of the Free Writing Prospectus) and, as amended or supplemented, if applicable, as of the Time of Delivery, included or includes 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; provided that such counsel need not express any belief as to the financial statements, related notes and supporting schedules and other financial, statistical and accounting data included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information or omitted therefrom or as to the Trustee’s Statement of Eligibility on Form T-1. Such counsel shall also state that such counsel does not know of any contracts or other documents of a character required to be ~~contemplated~~ filed as an exhibit to the Registration Statement or required to be incorporated by reference in the ~~Commission~~ Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by ~~any authority administering any state securities~~ reference or ~~blue sky law~~described as required. In rendering the foregoing opinion, such counsel may rely upon opinions of local counsel (which may include counsel for the Representatives) satisfactory in form and scope to counsel for the Representatives. (bd) ~~On or prior to~~ At the ~~Closing Date~~date hereof and at the Time of Delivery, ~~you~~ the Representatives shall have received from Deloitte & Touche LLP a ~~letter~~letter dated such date, ~~dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise~~ in form and substance reasonably satisfactory to ~~you~~ the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and ~~your counsel~~information of the type referred to in AICPA Statement on Auditing Standards No. 72 (or any successor standard thereto). (ce) ~~Subsequent to~~ Since the ~~execution and delivery of this Agreement or, if earlier, the~~ respective dates as of which information is given in the ~~Registration Statement~~ Prospectus (~~exclusive~~ including any amendments or supplements prior to the execution of ~~any amendment thereto~~the Pricing Agreement relating to the Designated Securities) and the ~~Prospectus (exclusive~~ Time of ~~any supplement thereto)~~Sale Information, there shall not have ~~occurred~~ been any material decrease in the outstanding capital stock (i) other than repurchases of common stock pursuant to previously disclosed programs or employee plans, disclosed or incorporated by reference in the Prospectus and the Time of Sale Information), or any ~~change~~ material increase in the long-term debt of the Company and its subsidiaries considered as a whole, or any material adverse change, or any development involving a prospective ~~change~~ material adverse change, in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.affect

Appears in 1 contract

Sources: Underwriting Agreement (Monsanto Co /New/)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and UBS AG contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and UBS AG shall have ~~received~~ delivered to you a ~~letter~~certificate of UBS AG, signed by an authorized officer of UBS AG and dated the Closing Date, to the effect that: (i) the representations and warranties of UBS AG 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifUBS AG has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to UBS AG, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of UBS AG, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of UBS AG, 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 UBS AG) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of UBS AG 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 UBS AG) of the articles of association and by-laws of UBS AG, as in effect on the Closing Date, and of the resolutions of UBS AG and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to UBS AG, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of each Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Initial Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee and Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee and ~~are~~ the Certificate Administrator” in the Prospectus is true and correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The ~~statements contained~~ Master Servicer” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (n) [RESERVED] (o) You shall have received from the Secretary or an Assistant Secretary of the KeyBank Primary Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the KeyBank Primary Servicer under the heading “Transaction Parties—The Primary Servicer—KeyBank National Association” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor and Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor and Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller and Service Provider a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (UBS Commercial Mortgage Trust 2018-C11)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and MSMCH contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and MSMCH shall have ~~received~~ delivered to you a ~~letter~~certificate of MSMCH, signed by an authorized officer of MSMCH and dated the Closing Date, to the effect that: (i) the representations and warranties of MSMCH 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifMSMCH has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to MSMCH, a good standing certificate from the Secretary of State of the State of New York and (ii) with respect to the Depositor, a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of MSMCH, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of MSMCH, 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 MSMCH) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of MSMCH 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 MSMCH) of the articles of organization and operating agreement of MSMCH, as in effect on the Closing Date, and of the resolutions of MSMCH and any required member consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to MSMCH, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third-party accounting firm a copy of the Accountants’ Due Diligence Reports and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his or her individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer—▇▇▇▇▇ Fargo Bank, National Association” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer—Argentic Services Company LP” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the Outsider Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Outsider Special Servicer under the heading “Transaction Parties—The Special Servicer—The BANK 2023-BNK45 Special Servicer” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (r) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Master Servicer, the Special Servicer, the Outside Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (u) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (MSWF Commercial Mortgage Trust 2023-1)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of BSP, BSPRT) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (A) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 (B) no event (including, without limitation, any act or omission on the part of ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2018-C46)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, (A) in the case of BSP, BSPRT and (B) in the case of LCF, the LC Guarantors) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from the Accounting Firms copies of the Accountants’ Due Diligence Reports and from Deloitte letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the effect ~~that: (i) DCFS~~ that Deloitte has ~~been duly organized and is validly existing~~ performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which it has determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes ▇-▇, ▇-▇ and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the respective compilations of information and data regarding the Mortgage Loans prepared by or on behalf of the Mortgage Loan Sellers and provided to Deloitte (such compilations, the “Master Tapes”), unless non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Third Party Purchaser, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2021-C60)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and UBS AG contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) ~~On or prior to~~ You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counselmay reasonably request. (c) ~~Subsequent~~ The Depositor shall have delivered to ~~the execution and delivery~~ you a certificate of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, ~~the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment~~ signed by an authorized officer of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing ~~Date and satisfactory in form and substance to you and your counsel~~Date, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of the Depositor 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 (xii) the ~~Company contained~~ Depositor has in all material respects complied with all the ~~Purchase Agreement~~ agreements and satisfied all the ~~Trust~~ conditions on its part that are required hereby to be performed or satisfied at or prior to the Closing Date; and UBS AG shall have delivered to you a certificate of UBS AG, signed by an authorized officer of UBS AG and dated the Closing Date, to the effect that: (i) the representations and warranties of UBS AG in this Agreement are ~~other than~~ true and correct in all material respects at and as ~~stated therein~~ of the Closing Date with the same effect as if made on the Closing Date; and (ii) UBS AG has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or ~~(y) DCFS contained in this Agreement,~~ satisfied hereunder at or prior to the ~~Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein~~Closing Date. (~~xiii~~d) ~~The Depositor is~~ You shall have received (i) with respect to UBS AG, a certificate of the ~~sole owner~~ Office of ~~all right, title~~ the Comptroller of the Currency and ~~interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it~~ (ii) with respect to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted Depositor a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with good standing certificate from the Secretary of State of the State of ~~Delaware and will constitute a first priority perfected security interest therein. No filing~~ Delaware, each dated not earlier than 30 days prior to the Closing Date. (i) You shall have received from the Secretary or ~~other action, other than the filing~~ an Assistant Secretary of the ~~UCC-1 financing statements~~ Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, signed this Agreement, or any other document or certificate delivered on or before the Closing Date in connection with the ~~Secretary~~ transactions contemplated herein, was at the respective times of ~~State~~ 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of ~~Delaware~~ Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of UBS AG, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of UBS AG, 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 UBS AG) has occurred since the date of the certificate referred to ~~above, is necessary to perfect and maintain~~ in Section 6(d) hereof which has affected the ~~interest or~~ existence of UBS AG under the ~~security interest~~ laws of the ~~Indenture Trustee in~~ United States of America. Such certificate shall be accompanied by true and complete copies (certified as such by the ~~Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds~~ Secretary or an Assistant Secretary of ~~each~~ UBS AG) of the ~~foregoing against third parties~~articles of association and by-laws of UBS AG, as in effect on the Closing Date, and of the resolutions of UBS AG and any required shareholder consent relating to the transactions contemplated in this Agreement. (~~xvi~~f) ~~The Receivables are tangible chattel paper as defined~~ You shall have received from in-house counsel of the Depositor or special counsel to the Depositor, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the ~~UCC~~Underwriters. (~~xvii~~g) ~~The~~ You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and ~~Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in~~ to the Prospectus (as of the date thereof and ~~any supplement thereto)~~as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (~~xviii~~h) ~~The statements~~ You shall have received from in-house counsel to UBS AG, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of each Accountants’ Due Diligence Report and 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 (A) in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Operating Advisor and Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Affiliated Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Affiliated Servicer under the heading “Transaction Parties—The Affiliated Servicer” in the Prospectus is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Master Servicer, the Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee, the Certificate Administrator, the Affiliated Servicer and the Retaining Sponsor a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (UBS Commercial Mortgage Trust 2019-C18)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Trust Preferred Securities and ~~pay for the Offered Notes will~~ Optional Trust Preferred Securities shall be subject to the accuracy of the representations and warranties on the part of each of the ~~Depositor herein~~Guarantor and the Trust contained herein as of the date hereof, the Applicable Time and the Closing Date or the Option Closing Date, as the case may be, to the accuracy of the statements of ~~officers of~~ the ~~Depositor~~ Guarantor and the Trust made in any certificates pursuant to the provisions hereof, to the performance by each of the ~~Depositor~~ Guarantor and the Trust of its obligations hereunder and to the following additional ~~conditions precedent~~conditions: (a) The Prospectus ~~and any supplements thereto~~ shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(A)(a) hereof; the ~~Rules and Regulations and~~ final term sheet contemplated by Section ~~7(a~~5(A)(a) hereof, and ~~prior~~ any other material required to be filed by the ~~Closing Date~~Guarantor or the Trust pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or, to the knowledge of the Depositor~~ initiated or ~~you, shall be contemplated~~ threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by ~~any authority administering any state securities or blue sky law~~the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction. (b) ~~On or prior~~ ▇▇▇▇▇▇▇, Head & ▇▇▇▇▇▇▇ LLP, counsel for the Guarantor, shall have furnished to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received Underwriters an ~~opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee~~opinion, dated the Closing Date ~~and satisfactory in form and substance to you and your counsel~~or the Option Closing Date, as the case may be, to the effect that: (i) ~~DCFS has been duly organized and~~ The Guarantor is validly existing as a ~~limited liability company~~ corporation in good standing under the laws of the State of ~~Michigan~~ Ohio, and is duly registered as a bank holding company and qualified as a financial holding company under the Bank Holding Company Act of 1956, as amended, with ~~full~~ power and authority to own its properties and conduct its business as ~~presently conducted by it, and to enter into and perform its obligations under this Agreement,~~ described in the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables.Prospectus; (ii) ~~The Company~~ This Agreement has been duly ~~organized~~ authorized, executed and delivered by the Guarantor and the Trust; (iii) Each of the Declaration of Trust, the Indenture and the Guarantee Agreement has been duly and validly authorized, executed and delivered by the Guarantor and constitutes a valid and binding agreement of the Guarantor, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity and an implied covenant of good faith and fair dealing; and each of the Declaration of Trust, the Indenture and the Guarantee Agreement has been duly qualified under the Trust Indenture Act; (iv) The issuance, execution and delivery of the Junior Subordinated Notes have been duly and validly authorized by the Guarantor and, when authenticated by the Indenture Trustee in the manner provided in the Indenture will constitute valid and binding obligations of the Guarantor, entitled to the benefits of the Indenture and enforceable against the Guarantor in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity and an implied covenant of good faith and fair dealing; (v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “The Trust”, “Description of the Trust Preferred Securities,” “Description of the Junior Subordinated Notes,” “Description of the Guarantee” and “Relationship among Trust Preferred Securities, Junior Subordinated Notes and Guarantee” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; (vi) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “ERISA Considerations,” insofar as it purports to constitute a summary of matters of the U.S. Employee Retirement Income Security Act of 1974 and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects; (vii) Neither the Trust nor the Guarantor is and, after giving effect to the offering and sale of the Trust Preferred Securities and the Junior Subordinated Notes and the application of the proceeds thereof, will be an “investment company,” as such term is defined in the Investment Company Act; (viii) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Guarantor prior to each Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Prospectus or the Prospectus, except for those referred to in the opinion in subsections (v) and (vi) of this Section 6(b), they have no reason to believe (i) that any part of the Registration Statement or any further amendment thereto made by the Guarantor prior to each Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when such part or amendment 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; (ii) that the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading; or (iii) that, as of its date and as of each Time of Delivery, the Prospectus or any further amendment or supplement thereto made by the Guarantor prior to each Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained or contains an 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; and they do not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement, the Basic Prospectus or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion or opinions, ▇▇▇▇▇▇▇, Head & ▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, the Guarantee Trustee or the Property Trustee upon the certificate or certificates of such entities, (ii) as to matters involving the application of laws of the State of New York upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP delivered pursuant to Section 6(f); and (iii) as to certain other matters, on certificates of responsible officers of the Guarantor, public officials and others deemed by such counsel to be responsible. (c) The Guarantor shall have furnished to the Underwriters an opinion, dated the Closing Date or the Option Closing Date, as the case may be, of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel of the Guarantor, to the effect that: (i) The Guarantor has been duly incorporated and is validly existing as a ~~limited liability company~~ corporation in good standing under the laws of the State of ~~Michigan~~ Ohio, with ~~full~~ power and authority to own its properties and conduct its business as ~~presently conducted by it~~ described in the Prospectus; (ii) Fifth Third Bank and ~~to enter into~~ Fifth Third Bank (Michigan) have been duly organized or incorporated and ~~perform its obligations~~ are validly existing as a bank or corporation in good standing under the ~~Trust Agreement~~ laws of its respective jurisdiction of organization or incorporation; and all of the ~~Purchase Agreement~~issued shares of capital stock of each such entity have been duly and validly authorized and issued, are fully paid and non-assessable, and ~~had at~~ (except for directors’ qualifying shares and except as otherwise set forth in the Prospectus) are owned directly or indirectly by the Guarantor, free and clear of all ~~times~~liens, encumbrances, equities or claims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and ~~now has~~in respect of matters of fact upon certificates of officers of the Guarantor or its subsidiaries, ~~the power, authority~~ provided that such counsel shall state that he believes that both you and ~~legal right to acquire, own, sell~~ he are justified in relying upon such opinions and ~~hold the excess cash flow from the Reserve Account and the Fixed Value Payments.~~certificates); (iii) ~~Each~~ 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 Guarantor or any of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee its subsidiaries or the ~~Indenture Trustee.~~Trust is a party or of which any property of the Guarantor or any of its subsidiaries or the Trust is the subject which is reasonably likely to be adversely determined against the Guarantor or any of its subsidiaries or the Trust and, if determined adversely to the Guarantor or any of its subsidiaries or the Trust, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Guarantor and its subsidiaries, taken as a whole, or of the Trust; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (iv) The ~~direction~~ documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the ~~Depositor~~ Guarantor prior to each Time of Delivery (other than the ~~Owner Trustee~~ financial statements and related schedules therein, as to ~~authenticate the Certificates has been duly authorized by the Depositor and~~which such counsel need express no opinion), when ~~the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance~~ they became effective or were filed with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the TrustCommission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Securities Act, 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, in the case of other documents which were filed under the Securities Act or the Exchange Act with the Commission, an 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 when such documents were so filed, not misleading; (v) The Guarantor has all power and authority (corporate and other) necessary to execute and deliver the Guarantor Transaction Agreements and to perform its obligations thereunder; the execution, delivery and performance of the Guarantor Transaction Agreements by the Guarantor and compliance with the provisions hereof and thereof by the Guarantor will ~~conflict with~~not constitute a breach of or default under the Second Amended Articles of Incorporation or Code of Regulations of the Guarantor or any of its subsidiaries, or ~~result in a~~ any material ~~breach~~agreement, ~~violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any~~ indenture or other ~~material agreement or material~~ instrument to which ~~DCFS~~ the Guarantor or ~~the Company~~ any of its subsidiaries is a ~~party or by which either of them is bound~~party, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of ~~such counsel's knowledge after due inquiry~~the Guarantor’s knowledge, ~~threatened before~~ any law, order, rule, regulation or decree of any court, ~~administrative~~ governmental agency or ~~other tribunal (1) asserting~~ authority located in the ~~invalidity of~~ United States having jurisdiction over the ~~Trust~~ Guarantor or any of its subsidiaries or any property of the ~~Basic Documents, (2) seeking to prevent the consummation of~~ Guarantor or any of ~~the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of~~ its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is boundsubsidiaries, which breach or default ~~has or~~ would be reasonably likely to have a material adverse effect on the financial condition, ~~earnings, prospects, business~~ stockholders’ equity or ~~properties~~ results of operations of the ~~Depositor~~ Guarantor and ~~its~~ it subsidiaries, taken as a whole, or on the ability of the Guarantor to perform its obligations hereunder or its obligations under the Guarantor Transaction Agreements; and (vi) To the best of such counsel’s knowledge, no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Trust Preferred Securities or the Junior Subordinated Notes or the consummation by the Guarantor and the Trust of the transactions contemplated by the Underwriting Agreement, except such as have been obtained under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Trust Preferred Securities by the Underwriters. In rendering such opinion or opinions, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ may rely as to matters involving the application of laws of the State of New York upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP delivered pursuant to Section 6(f). (~~xii~~d) ~~Nothing has come to such counsel's attention that would lead such~~ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to ~~believe that~~ the ~~representations~~ Guarantor and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, ~~pursuant~~ shall have furnished to the ~~Sale and Servicing Agreement~~Underwriters an opinion, ~~vests in~~ dated the ~~Trust all interests that are purported to be conveyed thereby~~Closing Date or the Option Closing Date, ~~free and clear of any liens~~as the case may be, ~~security interests or encumbrances except as specifically permitted pursuant~~ to the ~~Sale and Servicing Agreement or any other Basic Document.~~effect that: (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xvi) The ~~Indenture constitutes a grant by~~ Trust has been duly created and is validly existing and in good standing under the Delaware Statutory Trust to Act and all filings required under the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State laws of the State of Delaware with respect to the creation and ~~will constitute a first priority perfected security interest therein. No filing or other action, other than the filing~~ valid existence of the ~~UCC-1 financing statements with~~ Trust as a statutory trust have been made; (ii) Under the ~~Secretary of State of the State of~~ Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables Statutory Trust Act and the ~~proceeds~~ Declaration of ~~each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement~~Trust, the Trust ~~Agreement~~has the trust power and authority to own its property and conduct its business, all as described in the Prospectus; (iii) The provisions of the Declaration of Trust, including the terms of the Trust Preferred Securities, are permitted under the Delaware Statutory Trust Act and the Declaration of Trust constitutes a valid and binding obligation of the Guarantor and the Trustees, enforceable against the Guarantor and the Trustees in accordance with its terms, subject, as to enforcement, to the effect upon the Declaration of Trust of (i) bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation, fraudulent conveyance or transfer and other similar laws relating to or affecting the rights and remedies of creditors generally, (ii) principles of equity, including applicable law relating to fiduciary duties (regardless of whether considered and applied in a proceeding in equity or at law), and (iii) applicable public policy on the enforceability of provisions relating to indemnification or contribution; (iv) Under the Delaware Statutory Trust Act and the Declaration of Trust, the ~~Indenture,~~ Trust has the ~~Purchase~~ trust power and authority to (x) execute and deliver this Agreement and the ~~Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (~~Other Trust Transaction Agreements and ~~any supplement thereto). (xviii) The statements in the Prospectus~~ to perform its obligations under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing this Agreement and the Other Trust ~~Agreement~~Transaction Agreements, ~~constitute a fair summary~~ and (y) issue and perform its obligations under the Trust Preferred Securities and the Trust Common Securities; (v) Under the Delaware Statutory Trust Act and the Declaration of ~~such documents.~~Trust, (A) the execution and delivery by the Trust of this Agreement and the Other Trust Transaction Agreements and the performance by the Trust of its obligations hereunder and thereunder have been duly authorized by

Appears in 1 contract

Sources: Underwriting Agreement (Fifth Third Bancorp)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and BANA contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and BANA shall have ~~received~~ delivered to you a ~~letter~~certificate of BANA, signed by an authorized officer of BANA and dated the Closing Date, to the effect that: (i) the representations and warranties of BANA 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifBANA has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor, a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of BANA, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of BANA, 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 BANA) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of BANA 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 BANA) of the articles of association and by-laws of BANA, as in effect on the Closing Date, and of the resolutions of BANA and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer—▇▇▇▇▇ Fargo Bank, National Association” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank 2019-Bnk21)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and W▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of BSP, BSPRT) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and W▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of W▇▇▇▇ Fargo Bank, signed by an authorized officer of W▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of W▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifW▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to W▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of W▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of W▇▇▇▇ Fargo Bank, 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 W▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of W▇▇▇▇ Fargo Bank 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 W▇▇▇▇ Fargo Bank) of the articles of association and by-laws of W▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of W▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to W▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2019-C54)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and BANA contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and BANA shall have ~~received~~ delivered to you a ~~letter~~certificate of BANA, signed by an authorized officer of BANA and dated the Closing Date, to the effect that: (i) the representations and warranties of BANA 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifBANA has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to BANA, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor, a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of BANA, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of BANA, 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 BANA) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of BANA 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 BANA) of the articles of association and by-laws of BANA, as in effect on the Closing Date, and of the resolutions of BANA and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to BANA, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Reports and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-▇, ▇-▇ and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the General Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the heading “Transaction Parties—The Master Servicers—W▇▇▇▇ Fargo Bank, National Association” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the General Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Special Servicer under the heading “Transaction Parties—The Special Servicers— LNR Partners, LLC” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the NCB Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Master Servicer under the heading “Transaction Parties—The Master Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the NCB Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Special Servicer under the heading “Transaction Parties—The Special Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. (q) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (r) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (s) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the General Master Servicer, the General Special Servicer, the NCB Master Servicer, the NCB Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (t) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (u) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (v) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank 2022-Bnk42)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the ~~Offered Notes~~ [Certificates] [Notes] subject to this Agreement will be subject to the accuracy of the representations and warranties on the part of the Depositor ~~herein~~as of the date hereof, the date of the Terms Agreement and the applicable Delivery Date, to the accuracy of the statements of ~~officers of~~ the Depositor made pursuant to the provisions ~~hereof~~thereof, to the performance by the Depositor in all material respects of its obligations hereunder and to the following additional conditions precedent: (a) The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration 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 threatened; and the Prospectus ~~and any supplements thereto~~ Supplement shall have been filed or transmitted for filing with the Commission in accordance with Rule 424 under the ~~Rules~~ ▇▇▇▇ ▇▇▇. (b) The Depositor shall have delivered to you a certificate of the Depositor, signed by the President or a vice president of the Depositor and ~~Regulations~~ dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus Supplement and ~~Section 7(a~~this Agreement and that: (i) ~~hereof~~the representations and warranties of the Depositor 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, (ii) the Depositor 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 and (iii) 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 Depositor’s knowledge, threatened. (c) Each Seller and each Servicer shall have delivered to you a certificate of such Seller or Servicer, signed by the President or a vice president of such Seller or Servicer and dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Prospectus Supplement and that: (i) the representations and warranties of such Seller or Servicer in this Agreement or the related Sale and Purchase 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, (ii) such Seller or Servicer 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 and (iii) with respect to the Seller/Servicer’s Information, as defined herein, nothing has come to the attention of the signer that would lead the signer to believe that the Prospectus Supplement contains any untrue statement of a material fact 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. Seller/Servicer’s Information refers to sections in the Prospectus Supplement entitled “[_____________________]” (d) The Underwriters shall have received from counsel for the Depositor, one or more favorable opinions, dated the Closing Date, to the effect that: (i) The Registration Statement has become effective under the 1933 Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement ~~shall have~~ has been issued and not withdrawn, no proceedings for that purpose ~~shall~~ have been instituted oror threatened and not terminated; and the Registration Statement, as of its effective date (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 1933 Act and the rules and regulations thereunder; (ii) To the best knowledge of ~~the Depositor~~ such counsel, there are no material contracts, indentures or ~~you, shall~~ other documents of a character required to be ~~contemplated by the Commission~~ described or ~~by any authority administering any state securities or blue sky law. (b) On or prior~~ referred to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement ~~(exclusive of any amendment thereto) and~~ or the Prospectus Supplement or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto; (~~exclusive~~ iii) Each of ~~any supplement thereto)~~this Agreement, ~~there shall not have occurred~~ the [Pooling and Servicing Agreement] [Indenture] and each Sale and Purchase Agreement has been duly authorized, executed and delivered by the Depositor; (iiv) ~~any change or any development involving~~ [Pooling and Servicing Agreement] [Indenture] has been duly authorized, executed and delivered by the Depositor and constitutes a ~~prospective change in or affecting particularly the business or properties~~ legal, valid and binding agreement of ~~the Trust,~~ the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or enforceable against the Depositor ~~on any exchange~~ in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and 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 ~~in the over-the-counter market~~at law; ~~(iv) any banking moratorium declared by federal or New York authorities;~~ and (v) ~~any outbreak or escalation of major hostilities in which~~ The direction by the ~~United States is involved~~Depositor to the Trustee to execute, ~~any declaration of war~~ authenticate and deliver the [Certificates] [Notes] has been duly authorized by ~~Congress or any other substantial national or international calamity or emergency or any change~~ the Depositor, and the [Certificates] [Notes], when executed and authenticated in the ~~financial markets if,~~ manner contemplated in the ~~judgment~~ [Pooling and Servicing Agreement] [Indenture], will be validly issued and outstanding and entitled to the benefits of the ~~Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of~~ [Pooling and ~~payment for the Offered Notes or~~ Servicing Agreement] [Indenture]. (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS The Depositor has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of ~~Michigan with full~~ Delaware and has all corporate power and authority necessary to own or hold its properties and to conduct its business as ~~presently~~ now conducted by ~~it,~~ it and to enter into and perform its obligations under this Agreement, each Sale and Purchase Agreement and the ~~Sale~~ [Pooling and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the ] [Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.]; (vii) ~~This~~ To the best knowledge of such counsel, there are no actions, proceedings or investigations pending or threatened against or affecting the Depositor 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 Depositor to carry out the transactions contemplated in this Agreement, each Sale and Purchase Agreement ~~has been duly authorized, executed~~ or the [Pooling and ~~delivered by DCFS.~~Servicing Agreement] [Indenture]; (viii) ~~The Purchase Agreement and~~ 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 ~~Trust Agreement have been duly authorized, executed and delivered~~ consummation by the ~~Company and are the legal, valid and binding obligations~~ Depositor of the ~~Company enforceable against the Company in accordance with their terms~~transactions contemplated herein, except ~~(x) the enforceability thereof~~ such as may be ~~subject to bankruptcy, insolvency, reorganization, moratorium or other similar~~ required under the blue sky laws ~~now or hereafter~~ of any jurisdiction in ~~effect relating to creditors' rights~~ connection with the purchase and ~~(y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion~~ distribution of the ~~court before which any proceeding therefor may be brought.~~[Certificates] [Notes]; and (ix) ~~Neither~~ The Depositor is not in violation of its certificate of formation or limited liability company agreement or in default under any agreement, indenture or instrument the ~~transfer~~ effect of which violation or default would be material to the Depositor, and neither the issuance and sale of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture[Certificates] [Notes], nor the execution ~~and~~ or delivery of or performance under this ~~Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement,~~ Agreement or the ~~Sale~~ [Pooling and Servicing ~~Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company~~Agreement] [Indenture], nor the consummation of any other of the transactions contemplated ~~in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement~~ herein or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, therein will conflict ~~with,~~ with or result in a ~~material breach,~~ breach or violation of any term or ~~acceleration~~ provision of, or constitute a default (or an event which with the passing of time or notification, or both, would constitute a default) under, ~~any term~~ the certificate of formation or ~~provision~~ limited liability company agreement of the ~~articles~~ Depositor, or, to the knowledge of ~~organization or operating agreement of DCFS or the Company~~such counsel, ~~or of~~ any indenture or other ~~material~~ agreement or ~~material~~ instrument to which ~~DCFS~~ the Depositor or ~~the Company~~ any of its affiliates is a party or by which ~~either~~ it or any of them is bound, or ~~result in a violation of~~ any New York or ~~contravene the terms of any statute, order~~ federal statute or regulation applicable to ~~DCFS~~ the Depositor or any of its affiliates or, to the ~~Company~~ knowledge of such counsel, any order of any New York or federal court, regulatory body, administrative agency or governmental body having jurisdiction over ~~either~~ the Depositor or any of ~~them~~its affiliates. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus Supplement under the headings ~~"Risk Factors -- Trusts May Not Have a Perfected Security Interest~~ “Federal Income Tax Consequences” and “ERISA Considerations” and in ~~Certain Financed Vehicles"~~ the Prospectus under the headings “Material Federal Income Tax Consequences” and ~~"-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables"~~“ERISA Considerations”, 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~~ us and are correct in all material respects. (~~xix~~xi) The [Pooling and Servicing Agreement] [Indenture] is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund is not required to be registered under the Investment Company Act of 1940, as amended. (xii) Each REMIC as described in the [Pooling and Servicing Agreement] [Indenture] and the Prospectus Supplement will qualify as a REMIC within the meaning of Section 860D of the Code, assuming: (i) an election is made to treat the assets of such REMIC as a REMIC, (ii) compliance with the [Pooling and Servicing Agreement] [Indenture] and (iii) compliance with changes in the law, including any amendments to the Code or applicable Treasury regulations thereunder. Such counsel shall also state that nothing has come to its attention that would lead it to believe that the Registration Statement or the Prospectus (other than the financial and statistical information or information with respect to the Mortgage Loans, the Sellers or the Servicers, as to which such counsel need not express an opinion), 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 ~~contained~~ therein not misleading. With respect to the opinions above, such counsel may: (1) 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 Pooling and Servicing Agreement; (2) assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Depositor; (3) qualify such opinion only as to the federal laws of the United States of America, the laws of the State of New York and, the Limited Liability Company Act of the State of Delaware; and (4) to the extent necessary, rely as to the laws of states, other than those specified in clause (3), on the opinion of local counsel. Such counsel shall also confirm that you may rely, on and as of the Closing Date, on any opinion or opinions of such counsel submitted to the rating agency or agencies rating the Offered [Certificates] [Notes] as if addressed to you and dated the Closing Date. (e) The Underwriters shall receive from [______] certified public accountants, letters, dated the date of the Prospectus Supplement and satisfactory in form and substance to you and your counsel, to the effect that the accountants have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in the Prospectus ~~and any supplement thereto under~~ Supplement agrees with the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary general accounting records of the ~~Notes~~Sellers. (f) The Underwriters shall have received from each of [______] and [______] letters confirming the ratings set forward in the related Terms Agreement, which ratings shall not have been withdrawn. (g) The Underwriters shall have received from counsel for the Trustee a favorable opinion, dated the Closing Date, in form and substance satisfactory to you and your counsel, to the effect that the [Pooling and Servicing Agreement] [Indenture] has been duly authorized, executed and delivered by the Trustee and constitute legal, valid, binding and enforceable agreements of the Trustee, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights in general and by general principles of equity regardless of whether enforcement is considered in a proceeding in equity or at law, and as to such other matters as may be agreed upon by you and the Trustee. (h) The Underwriters shall have received from counsel to each Servicer a favorable opinion, dated the Closing Date, in form and substance satisfactory to you and your counsel, to the effect that the [Pooling and Servicing Agreement] [Indenture] has been duly authorized, executed and delivered by the Servicers and constitute legal, valid, binding and enforceable agreements of such Servicer, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights in general and by general principles of equity regardless of whether enforcement is considered in a proceeding in equity or at law, and as to such other matters as may be agreed upon by you and the Servicers. (i) The Underwriters shall have received from counsel to each Seller a favorable opinion, dated the Closing Date, in form and substance satisfactory to you and your counsel, to the effect that the [Pooling and Servicing Agreement] [Indenture] and each Sale and Purchase Agreement has been duly authorized, executed and delivered by the Sellers and constitute legal, valid, binding and enforceable agreements of the Sellers, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights in general and by general principles of equity regardless of whether enforcement is considered in a proceeding in equity or at law, and as to such other matters as may be agreed upon by you and the Sellers. (j) The Underwriters shall have received such further information, certificates, documents and opinions as you may reasonably have requested not less than three business days prior to the Closing Date. All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and your counsel, and you and such counsel shall have received such information, certificates and documents as you or they may have reasonably requested. 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, this Agreement and all your obligations hereunder may be canceled by you at, or at any time prior to, the ~~Indenture,~~ Closing Date. Notice of such cancellation shall be given to the ~~Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement~~ Depositor and the ~~Trust Agreement~~Sellers in writing, ~~constitute a fair summary of such documents~~or by telephone or facsimile transmission confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Terwin Securitization LLC)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and MSMCH contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and MSMCH shall have ~~received~~ delivered to you a ~~letter~~certificate of MSMCH, signed by an authorized officer of MSMCH and dated the Closing Date, to the effect that: (i) the representations and warranties of MSMCH 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifMSMCH has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to MSMCH, a good standing certificate from the Secretary of State of the State of New York and (ii) with respect to the Depositor, a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of MSMCH, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of MSMCH, 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 MSMCH) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of MSMCH 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 MSMCH) of the articles of organization and operating agreement of MSMCH, as in effect on the Closing Date, and of the resolutions of MSMCH and any required member consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to MSMCH, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Reports and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his or her individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the General Master ▇▇▇▇▇▇▇▇, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the heading “Transaction Parties—The Master Servicers—Trimont LLC” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the NCB Master Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Master Servicer under the heading “Transaction Parties—The Master Servicers—National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the General Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Special Servicer under the heading “Transaction Parties—The Special Servicers—CWCapital Asset Management LLC” in the Prospectus is true and correct in all material respects. (p) You shall have received from the Secretary or an Assistant Secretary of the NCB Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Special Servicer under the heading “Transaction Parties—The Special Servicers— National Cooperative Bank, N.A.” in the Prospectus is true and correct in all material respects. (q) You shall have received from the Secretary or an Assistant Secretary of the Outside Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Outside Special Servicer under the heading “Transaction Parties—The Outside Special Servicer” in the Prospectus is true and correct in all material respects. (r) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor and the Asset Representations Reviewer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (s) You shall have received from counsel for each Mortgage Loan Seller, the retaining sponsor, the Master Servicers, the Special Servicers, the Outside Special Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (t) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (u) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (v) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank 2026-Bnk52)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of Ladder, ▇▇ ▇▇▇▇, LCFH and LC TRS) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of each Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and ~~any supplement thereto~~ correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the General Master ▇▇▇▇▇▇▇▇, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Master Servicer under the heading “Transaction Parties—The Master Servicers—▇▇▇▇▇ Fargo Bank, National Association” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the General Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the General Special Servicer under the heading “Transaction Parties—The Special Servicers—Rialto Capital Advisors, LLC” in the Prospectus is true and correct in all material respects. (o) You shall have received from the Secretary or an Assistant Secretary of the NCB Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the NCB Servicer under the headings ~~"Payments on~~ “Transaction Parties—The Master Servicers—National Cooperative Bank, N.A.” and “Transaction Parties—The Special Servicers—National Cooperative Bank, N.A.” in the ~~Notes", "Payments on~~ Prospectus is true and correct in all material respects. (p) You shall have received from the ~~Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ Secretary or an Assistant Secretary of the ~~Notes~~Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from the Secretary or an Assistant Secretary of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and the Asset Representations Reviewer” in the Prospectus, is true and correct in all material respects. (r) You shall have received from counsel for each Mortgage Loan Seller, the ~~Indenture~~General Master Servicer, the ~~Administration~~ General Special Servicer, the NCB Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (s) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (t) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (u) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the 1934 Act to the satisfaction of the Underwriters. 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 ~~Purchase Agreement~~Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2016-C33)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and MSMCH contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and MSMCH shall have ~~received~~ delivered to you a ~~letter~~certificate of MSMCH, signed by an authorized officer of MSMCH and dated the Closing Date, to the effect that: (i) the representations and warranties of MSMCH 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets ifMSMCH has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to MSMCH, a good standing certificate from the Secretary of State of the State of New York and (ii) with respect to the Depositor, a good standing certificate from the Secretary of State of the State of Delaware, each dated not earlier than 30 days prior to the Closing Date. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of MSMCH, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of MSMCH, 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 MSMCH) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of MSMCH 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 MSMCH) of the articles of organization and operating agreement of MSMCH, as in effect on the Closing Date, and of the resolutions of MSMCH and any required member consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to MSMCH, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Reports and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from the Secretary or an Assistant Secretary of the Certificate Administrator and the Trustee, in his or her individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Certificate Administrator and ~~are~~ Trustee” in the Prospectus is true and correct in all material respects. (~~xix~~l) You shall have received from the Secretary or an Assistant Secretary of the Master Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The ~~statements contained~~ Master Servicer” in the Prospectus is true and correct in all material respects. (m) You shall have received from the Secretary or an Assistant Secretary of the Special Servicer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Primary Servicer and the Special Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from the Secretary or an Assistant Secretary of the Operating Advisor and the Asset Representations Reviewer, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (o) You shall have received from counsel for each Mortgage Loan Seller, the retaining sponsor, the Master Servicer, the Special Servicer, the Primary Servicer, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (p) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (q) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (r) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Bank5 2024-5yr11)

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 Offered Notes will~~ Registered Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~and ▇▇▇▇▇ Fargo Bank contained herein as of the date 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 or any supplement thereto is filed with the Commission and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; (iv) the performance by the Depositor and each Mortgage Loan Seller (and, in the case of LCF, the LC Guarantors, and in the case of Barclays, Barclays Holdings) of their respective obligations under the applicable Mortgage Loan Purchase Agreement to be performed on or prior to the Closing Date; and (v) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge~~ Depositor’s knowledge, threatened; and the Prospectus, the Preliminary Prospectus and all other Time of ~~the Depositor~~ Sale Information shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1933 Act, as applicable. (b) On You shall have received from counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Registered Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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~~, you~~ ; and ▇▇▇▇▇ Fargo Bank shall have ~~received~~ delivered to you a ~~letter~~certificate of ▇▇▇▇▇ Fargo Bank, signed by an authorized officer of ▇▇▇▇▇ Fargo Bank and dated the Closing Date, to the effect that: (i) the representations and warranties of ▇▇▇▇▇ Fargo Bank 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~~, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed~~ ; and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if▇▇▇▇▇ Fargo Bank has, in all material respects, complied with all the ~~judgment of~~ agreements and satisfied all the ~~Underwriters,~~ conditions on its part to be performed or satisfied hereunder at or prior to the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United StatesClosing Date. (d) You shall have received (i) with respect to ▇▇▇▇▇ Fargo Bank, a certificate of the Office of the Comptroller of the Currency and (ii) with respect to the Depositor 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. (e) (i) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of North Carolina. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of incorporation and by-laws of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement; and (ii) you shall have received from the Secretary or an Assistant Secretary of ▇▇▇▇▇ Fargo Bank, in his or her individual capacity, a certificate, dated the Closing Date, to the effect that: (A) each individual who, as an officer or representative of ▇▇▇▇▇ Fargo Bank, 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 (B) no event (including, without limitation, any act or omission on the part of ▇▇▇▇▇ Fargo Bank) has occurred since the date of the certificate referred to in Section 6(d) hereof which has affected the existence of ▇▇▇▇▇ Fargo Bank 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 ▇▇▇▇▇ Fargo Bank) of the articles of association and by-laws of ▇▇▇▇▇ Fargo Bank, as in effect on the Closing Date, and of the resolutions of ▇▇▇▇▇ Fargo Bank and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel ~~in the office~~ of the ~~General Counsel of DCFS and~~ Depositor or special counsel to the ~~Company~~Depositor, ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (g) You shall have received one or more letters of counsel to the Underwriters, relating to the Time of Sale Information as of the Time of Sale and to the Prospectus as of the date thereof and as of the Closing Date, dated the Closing Date, in form and substance satisfactory to you. (h) You shall have received from in-house counsel to ▇▇▇▇▇ Fargo Bank, one or more favorable opinions, dated the Closing Date in form and substance satisfactory to you and counsel for the Underwriters. (i) You shall have received from a third party accounting firm a copy of the Accountants’ Due Diligence Report and letters satisfactory in form and substance to you and ~~your counsel~~counsel for the Underwriters, to the ~~effect that~~following effect: (i) ~~DCFS has been duly organized and is validly existing~~ they have performed certain specified procedures as a ~~limited liability company in good standing under~~ result of which they have determined that the ~~laws~~ information of ~~the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it~~an accounting, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify financial or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as statistical nature set forth ~~in the Prospectus~~ (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xiiA) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the ~~headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ captions “Summary of Terms,” “Description of the ~~Depositor May Result in Delays~~Mortgage Pool” and “Yield and Maturity Considerations”, ~~Reductions or Loss of Payments~~ (B) on Annexes A-1, A-2 and A-3 to ~~Securityholders" and "Certain Legal Aspects~~ each of the ~~Receivables"~~Prospectus and the Preliminary Prospectus and (C) in the Term Sheet agrees with the Master Tapes 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 an agreed-upon portion of the data contained in the Master Tapes referred to in the immediately preceding clause (i) to information contained in 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 non-material deviations are otherwise noted in such letter. (j) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Registered Certificates on the Closing Date are as described in Section 1(a)(xix) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (k) You shall have received from an officer of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the ~~extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel~~ effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus is true and ~~are~~ correct in all material respects. (~~xix~~l) You shall have received from an officer of the Certificate Administrator, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The ~~statements contained~~ Certificate Administrator” in the Prospectus is true and correct in all material respects. (m) You shall have received from an officer of the Master Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Master Servicer under the heading “Transaction Parties—The Master Servicer” in the Prospectus is true and correct in all material respects. (n) You shall have received from an officer of the Special Servicer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Special Servicer under the heading “Transaction Parties—The Special Servicer” in the Prospectus is true and correct in all material respects. (o) You shall have received from an officer of the Operating Advisor, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Operating Advisor under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (p) You shall have received from an officer of the Asset Representations Reviewer, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information relating to the Asset Representations Reviewer under the heading “Transaction Parties—The Operating Advisor and Asset Representations Reviewer” in the Prospectus is true and correct in all material respects. (q) You shall have received from counsel for each Mortgage Loan Seller, the Retaining Sponsor, the Third Party Purchaser, 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, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (r) You shall have received copies of any opinions from special counsel to the Depositor, supplied to the Depositor for posting on its 17g-5 website relating to certain matters with respect to the Registered Certificates, the transfer of the Mortgage Loans and any ~~supplement thereto~~ other matters related thereto. Any such opinions shall be dated the Closing Date and addressed to the Underwriters. (s) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to you and counsel for the Underwriters, and you and such counsel shall have received such additional information, certificates and documents as you or they may have reasonably requested. (t) The Depositor shall timely comply with all requirements of Rules 15Ga-2 and 17g-5 under the ~~headings "Payments on~~ 1934 Act to the ~~Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary~~ satisfaction of the ~~Notes~~Underwriters. 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 Depositor is in breach of any covenants or agreements contained herein or if any of the opinions and certificates referred to above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to you and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the ~~Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary~~ Closing Date by you. Notice of such ~~documents~~cancellation shall be given to the Depositor in writing, or by telephone confirmed in writing.

Appears in 1 contract

Sources: Underwriting Agreement (Wells Fargo Commercial Mortgage Trust 2019-C49)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the ~~Offered Notes~~ Certificates will be subject to the accuracy of the representations and warranties on the part of the Depositor herein, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions precedent: (a) The Prospectus and any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to 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 Depositor or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law. (b) On or prior to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the ~~Offered Notes~~ Certificates or makes it impractical or inadvisable to market the ~~Offered Notes~~Certificates; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the ~~Offered Notes~~ Certificates or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Note Underwriting Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and ~~delivered~~delivered and paid for pursuant to this Agreement, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to ~~this~~ the Note Underwriting Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement ~~has~~ and the Note Underwriting Agreement have been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Note Underwriting Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Note Underwriting Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement and the Note Underwriting Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Note Underwriting Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Note Underwriting Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.it

Appears in 1 contract

Sources: Certificate Underwriting Agreement (DaimlerChrysler Financial Services Americas LLC)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Offered Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Depositor~~ Seller herein, to the accuracy of the statements of officers of the ~~Depositor~~ Seller made pursuant to the provisions hereof, to the performance by the ~~Depositor~~ Seller of its obligations hereunder and to the following additional conditions precedent: (a) ~~The~~ Each of the Preliminary Prospectus and ~~any supplements thereto~~ the Prospectus shall have been filed with the Commission in the manner and within the applicable time period required by Rule 424(b) without reliance on Rule 424(b)(8) and in accordance with ~~the Rules and Regulations and~~ Section ~~7(a~~6(b) hereof, and ~~prior to~~ as of 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 ~~Depositor~~ Seller or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law. (b) On or prior to the Closing Date, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the ~~Depositor~~Seller, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the ~~Depositor~~ Seller on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the ~~Depositor~~Seller, the Owner Trustee or the Indenture Trustee. (iv) The direction by the ~~Depositor~~ Seller to the Owner Trustee to authenticate the Certificates has been duly authorized by the ~~Depositor~~ Seller and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the ~~Depositor~~ Seller to the Indenture Trustee to authenticate the Notes has been duly authorized by the ~~Depositor~~ Seller and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the ~~Depositor~~ Seller to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the ~~Depositor~~ Seller or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the ~~Depositor~~ Seller and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The ~~Depositor~~ Seller is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the ~~Depositor~~Seller's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible or electronic chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", 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. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the ~~Notes", "Payments on the~~ Securities", "Form of Securities and Transfers", " and "Principal Documents~~", "Sale Provisions", "Servicing" and "The Indenture~~", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents. (xx) No consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated in the Basic Documents, except such filings with respect to the transfer of the Receivables to the Trust pursuant to the Sale and Servicing Agreement, the grant of a security interest in the Collateral to the Indenture Trustee pursuant to the Indenture and such other approvals as have been obtained and filings as have been made. (xxi) Such counsel is familiar with the Seller's standard operating procedures relating to the Seller's acquisition of a perfected first priority security interest in the vehicles financed by the Seller pursuant to retail automobile and light duty truck installment sale contracts in the ordinary course of the Seller's business. Assuming that the Seller's standard procedures are followed with respect to the perfection of security interests in the Financed Vehicles (and such counsel has no reason to believe that the Seller has not followed or will not continue to follow its standard procedures in connection with the perfection of security interests in the Financed Vehicles), the Seller has acquired or will acquire a perfected first priority security interest in the Financed Vehicles. (xxii) All actions required to be taken and all filings required to be made under the Act and the Exchange Act prior to the sale of the Notes have been duly taken or made. [Neither the Certificates nor [t][T]]he Class A-1 Notes are [not] required to be registered under the Act. (xxiii) The Trust Agreement is not required to be qualified under the Trust Indenture Act and the Trust is not required to be registered under the Investment Company Act. (xxiv) The Indenture has been duly qualified under the Trust Indenture Act. (xxv) The Seller is not, and will not as a result of the offer and sale of the Notes as contemplated in the Prospectus (and any supplement thereto) and this Agreement become, an "investment company" as defined in the Investment Company Act or a company "controlled by" an "investment company" within the meaning of the Investment Company Act. (xxvi) To the best of such counsel's knowledge and information, there are no legal or governmental proceedings pending or threatened that are required to be disclosed in the Registration Statement, other than those disclosed therein. (xxvii) To the best of such counsel

Appears in 1 contract

Sources: Underwriting Agreement (DaimlerChrysler Financial Services Americas LLC)

Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder to purchase ~~and pay for~~ the ~~Offered Notes will~~ Certificates shall be subject to the accuracy in all material respects of the representations and warranties on the part of the ~~Depositor herein~~Company contained herein as of the date 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 ~~officers of~~ the ~~Depositor~~ Company made in any certificates delivered pursuant to the provisions hereof, to the performance in all material respects by the ~~Depositor~~ Company of its obligations hereunder and to satisfaction, as of the Closing Date, of the following additional ~~conditions precedent~~conditions: (a) ~~The Prospectus and any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Company's knowledge, threatened; the ~~Depositor~~ Prospectus Supplement shall have been filed or ~~you, shall~~ transmitted for filing with the Commission in accordance with Rule 424 under the 1933 Act Rules; and any Free Writing Prospectuses contemplated to be ~~contemplated~~ filed by the Company under Section 4(b)(vi) hereof shall have been filed or transmitted for filing with the Commission ~~or by any authority administering any state securities or blue sky law~~in accordance with Rule 433 under the 1933 Act Rules, to the extent required to be filed thereunder. (b) On The Company shall have delivered to the Underwriters a certificate of the Company, signed by an authorized officer of the Company and dated the Closing Date, to the effect that: (i) the representations and warranties of the Company 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) the Company has 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~~, you~~ . (c) The Underwriters shall have received with respect to the Company a ~~letter~~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, to the effect that: (i) each individual who, as an officer or representative of the Company, signed this Agreement, the Pooling and Servicing Agreement, any of the Mortgage Loan Purchase Agreements or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein, in the Pooling and Servicing Agreement or in any of the Mortgage Loan Purchase Agreements, 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 ~~KPMG LLP~~such persons appearing on such documents and certificates are their genuine signatures; and (ii) no event (including, ~~certified public accountants~~without limitation, ~~substantially in~~ any act or omission on the ~~form~~ part of the ~~drafts~~ Company) has occurred since the date of the good standing certificate referred to ~~which you have previously agreed and otherwise~~ in ~~form and substance satisfactory to you and your counsel.~~ paragraph (c) ~~Subsequent to~~ above which has affected the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties good standing of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to you and your counsel, to the effect that: (i) DCFS has been duly organized and is validly existing as a limited liability company in good standing Company under the laws of the State of ~~Michigan with full power~~ Delaware. Such certificate shall be accompanied by true and ~~authority to own its properties~~ complete copies (certified as such by the Secretary or an assistant secretary of the Company) of (i) the certificate of incorporation and ~~conduct its business~~ by-laws of the Company, as ~~presently conducted by it~~in effect on the Closing Date, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables. (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ the ~~laws~~ resolutions of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect any required shareholder consent relating to ~~creditors' rights and (y)~~ the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the ~~Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements. (~~such agreements~~e) The Underwriters shall have received from Sidley Austin LLP, ~~excluding this Agreement~~special counsel for the Company, ~~being~~one or more favorable opinions, ~~collectively~~dated the Closing Date, substantially in the ~~"Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company~~ form or the ~~Trust~~respective forms, as the case may be, ~~will conflict with~~attached hereto as Exhibit A-1. (f) The Underwriters shall have received copies of all legal opinion letters delivered by Sidley Austin LLP, ~~or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or~~ special counsel for the Company, or to the Rating Agencies in connection with the issuance of ~~any indenture or other material agreement or material instrument~~ the Certificates, accompanied in each case by a letter signed by Sidley Austin LLP stating that the Underwriters may rely on such opinion letter as if it were addressed to ~~which DCFS or the Company is a party or by which either~~ them as of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of themdate thereof. (xg) ~~There are no actions~~The Underwriters shall have received from in-house counsel for the Company, ~~proceedings or investigations pending or~~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 Austin LLP, special counsel for the Company, a letter, dated the Closing Date, containing a statement to the ~~best of such counsel's knowledge after due inquiry~~effect that, ~~threatened before any court, administrative agency or other tribunal (1) asserting the invalidity~~ based on discussions with certain representatives of the ~~Trust or~~ Company, LUBS, UBSREI, LBHI, the Underwriters, the Trustee, the Master Servicer, the Special Servicer and their respective counsel, and (with limited exception) without having reviewed any of the ~~Basic Documents~~mortgage notes, ~~(2) seeking~~ mortgages or other documents relating to ~~prevent~~ the ~~consummation of~~ Mortgage Loans, or any documents, records, agreements, ratings or portfolio data or any other information regarding the business or operations of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreementsponsors, the ~~Purchase Agreement~~Trustee, Master Servicer or Special Servicer (other than the ~~Trust Agreement, the Sale~~ Pooling and Servicing Agreement, ) and without having made any independent check or verification of the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth statements contained in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the ~~Company is a party or by which either~~ Time of ~~them is bound~~Sale Information, ~~which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing~~ nothing has come to such counsel's attention that would lead ~~such counsel~~ it to believe that the Time of Sale Information, at the Time of Sale, or the Prospectus (other than any financial, statistical or numerical data set forth or referred to therein or omitted therefrom, other than any information set forth on or omitted from any diskette that may accompany the Prospectus, other than any documents or information incorporated therein by reference, and other than information relating to or based upon the Mortgage Loan Seller Matters, as to which such counsel has not been requested to comment), at the date of the Prospectus Supplement or at the Closing Date, contained or contains 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. (i) The Underwriters shall have received from Deloitte & Touche LLP, certified public accountants, a letter dated the date of the Prospectus Supplement and satisfactory in form and substance to the Underwriters and their counsel, to the following effect: (i) 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 Time of Sale Information, 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; (ii) 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 (iii) 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 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 parties to the Pooling and Servicing Agreement and on certificates furnished by public officials and, further, may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the 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, the laws of the jurisdiction of organization for the party on behalf of which such opinion is being rendered and the federal law of the United States. (xk) The Underwriters shall have been furnished with all documents, certificates and opinions required to be delivered by UBSREI, UBSPF and UBSAI in connection with the sale by UBSREI of the UBS Mortgage Loans to the Company, pursuant to the UBS Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to rely on each such certificate executed and delivered by UBSREI, UBSPF, UBSAI or any of their respective officers and representatives, to the same extent that the Company ~~contained~~ may so rely, and each such opinion addressed to the Company shall also be addressed to the Underwriters. (l) The Underwriters shall have been furnished with all documents, certificates and opinions required to be delivered by LBHI in connection with the sale by LBHI of the LBHI Mortgage Loans to the Company, pursuant to the LBHI Mortgage Loan Purchase ~~Agreement~~ Agreement. The Underwriters shall be entitled to rely on each such certificate executed and delivered by LBHI or any of its officers and representatives, to the ~~Trust Agreement are~~ same extent that the Company may so rely, and each such opinion addressed to the Company shall also be addressed to the Underwriters. (m) The Underwriters shall have been furnished with all documents, certificates and opinions required to be delivered by LUBS and/or LBHI in connection with the sale by LUBS of the LUBS Mortgage Loan to the Company, pursuant to the LUBS Mortgage Loan Purchase Agreement. The Underwriters shall be entitled to rely on each such certificate executed and delivered by LUBS, LBHI or any of their respective 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. (n) The Underwriters shall have been furnished with such other documents and opinions as the Underwriters may reasonably require, for the purpose of enabling them to pass upon the issuance and sale of the Certificates as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained. (o) 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 Section 6 shall not have been fulfilled in all material respects when and as ~~stated therein or (y) DCFS contained~~ provided in this Agreement, if the ~~Trust Agreement, the Purchase Agreement~~ Company is in material breach of any covenants or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment agreements contained herein or if any of the ~~Receivables, all documents~~ opinions and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware certificates referred to ~~above, is necessary to perfect and maintain the interest~~ above or ~~the security interest of the Indenture Trustee~~ elsewhere in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase this Agreement ~~and the Administration Agreement conform~~ shall not be in all material respects ~~with~~ reasonably satisfactory in form and substance to the ~~descriptions thereof contained in the Prospectus (~~Underwriters and ~~any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles"~~ their counsel, this Agreement and ~~"-- Insolvency~~ all obligations of the ~~Depositor May Result in Delays~~Underwriters hereunder may be cancelled at, ~~Reductions~~ or ~~Loss~~ at any time prior to, the Closing Date by the Underwriters. Notice of ~~Payments to Securityholders" and "Certain Legal Aspects of the Receivables",~~ such cancellation shall be given to the ~~extent they constitute matters of law~~ Company in writing, or ~~legal conclusions with respect thereto, have been reviewed~~ by ~~such counsel and are correct~~ telephone or telegraph confirmed in ~~all material respects~~writing. (xix) The statements contained in the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.

Appears in 1 contract

Sources: Underwriting Agreement (Lb-Ubs Commercial Mortgage Trust 2006-C1)

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 Offered Notes will~~ Underwritten Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of the Depositor ~~herein~~contained herein as of the date 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 and as of the Closing Date; (ii) the accuracy of the statements of ~~officers of~~ the Depositor made in any certificates delivered pursuant to the provisions hereof~~, to~~ ; (iii) the performance by the Depositor of its obligations ~~hereunder~~ hereunder; and to (iv) the following additional ~~conditions precedent~~conditions: (a) The ~~Prospectus and any supplements thereto~~ Registration Statement shall have ~~been filed with the Commission in accordance with the Rules~~ become effective and ~~Regulations and Section 7(a) hereof, and prior to the Closing Date,~~ no stop order suspending the effectiveness of the Registration ~~Statement~~ 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, to the ~~knowledge of~~ Depositor’s knowledge, threatened; and the ~~Depositor~~ Prospectus Supplement and each Issuer Free Writing Prospectus shall have been filed or ~~you, shall be contemplated by~~ transmitted for filing with the Commission or in accordance with Rule 424 under the 1933 Act or, in the case of each Issuer Free Writing Prospectus, to the extent required by ~~any authority administering any state securities or blue sky law~~Rule 433 under the 1▇▇▇ ▇▇▇. (b) On You shall have received from Cadwalader W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, counsel for the Underwriters, a favorable opinion, dated the Closing Date, as to such matters regarding the Underwritten Certificates as you may reasonably request. (c) The Depositor shall have delivered to you a certificate of the Depositor, signed by an authorized officer of the Depositor and dated the Closing Date, to the effect that: (i) the representations and warranties of the Depositor 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) the Depositor has 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, you shall have received a letter, dated as of the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG which, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received with respect to the Depositor a good standing certificate from the Secretary of State of the State of Delaware, dated not earlier than 30 days prior to the Closing Date. (e) You shall have received from the Secretary or an ~~opinion~~ Assistant Secretary of the Depositor, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (x) each individual who, as an officer or representative of the Depositor, 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 the Depositor) has occurred since the date of the good standing certificate referred to in Section 6(d) hereof which has affected the good standing of the Depositor under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an Assistant Secretary of the Depositor) of the certificate of formation or limited liability company agreement of the Depositor, as in effect on the Closing Date, and of the resolutions of the Depositor and any required shareholder consent relating to the transactions contemplated in this Agreement. (f) You shall have received from in-house counsel for the Depositor (in the ~~office~~ case of the ~~General Counsel~~ following clauses (i) through (v)) and from Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, special counsel for the Depositor (in the case of ~~DCFS and~~ the ~~Company~~following clauses (vi) through (xii)), ~~addressed to you and the Indenture Trustee~~one or more favorable opinions, dated the Closing Date and satisfactory in form and substance to you and ~~your counsel,~~ counsel for the Underwriters substantially to the effect that: (i) ~~DCFS has been duly organized and~~ The Depositor is ~~validly existing as~~ a limited liability ~~company~~ company, duly organized, validly existing and in good standing under the laws of the State of ~~Michigan with full~~ Delaware, and has all requisite limited liability company power and authority to ~~own its properties and conduct its business as presently conducted by it~~execute, ~~and to enter into~~ deliver and perform its obligations under ~~this Agreement,~~ each of the ~~Sale~~ Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements and this Agreement~~, the Trust Agreement, and the Administration Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and service the Receivables~~. (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ Neither the ~~laws~~ issuance or sale of the ~~State~~ Underwritten Certificates nor the execution, delivery or performance of ~~Michigan with full power and authority to own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under~~ the Trust Agreement and the Purchase Agreement, and had at all times, and now has, the power, authority and legal right to acquire, own, sell and hold the excess cash flow from the Reserve Account and the Fixed Value Payments. (iii) Each terms of DCFS and the Company is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by the Depositor, the Owner Trustee or the Indenture Trustee. (iv) The direction by the Depositor to the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust Agreement, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (v) The direction by the Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and (y) to general principles of equity (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law). (vi) The Purchase Agreement, the Trust Agreement, the Sale Pooling and Servicing Agreement and the ~~Administration Agreement have been duly authorized, executed and delivered by DCFS, and are legal, valid and binding obligations of DCFS enforceable against DCFS in accordance~~ Mortgage Loan Purchase Agreements conflicts with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Company and are the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration Agreement, or the Sale and Servicing Agreement by DCFS, nor the execution and delivery of the Trust Agreement and the Purchase Agreement by the Company, nor the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a ~~material breach,~~ breach or violation ~~or acceleration~~ of, or constitute a default under, ~~any term~~ (a) the certificate of formation or ~~provision~~ limited liability company agreement of the ~~articles of organization or operating agreement of DCFS or the Company~~Depositor, ~~or of~~ (b) to such counsel’s knowledge, any indenture or other ~~material~~ agreement or ~~material~~ instrument to which ~~DCFS or~~ the ~~Company~~ Depositor is a party or by which ~~either of them~~ it is bound, ~~or result in a violation of or contravene the terms of~~ (c) any ~~statute, order~~ statute or regulation applicable to ~~DCFS~~ the Depositor, or ~~the Company~~ (d) to such counsel’s knowledge, any order of any court, regulatory body, administrative agency or governmental body having jurisdiction over ~~either of them~~the Depositor. (xiii) ~~There are no actions, proceedings or investigations pending or, to~~ To the best of such counsel~~'s knowledge after due inquiry~~’s knowledge, there are no legal or governmental actions, investigations or proceedings pending to which the Depositor is a party, or threatened ~~before any court~~against the Depositor, ~~administrative agency or other tribunal~~ that (1a) ~~asserting~~ assert the invalidity of this Agreement, the ~~Trust~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements or ~~any~~ the Certificates, (b) seeks to prevent the issuance of the ~~Basic Documents, (2) seeking to prevent~~ Certificates or the consummation of any of the transactions contemplated by ~~any of~~ this Agreement, the ~~Basic Documents~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements or ~~the execution and delivery thereof,~~ (3c) ~~that might~~ would materially and adversely affect the performance by ~~DCFS~~ the Depositor of its obligations under, or the validity or enforceability of, any of this Agreement, the ~~Purchase Agreement, the Trust Agreement, the Sale~~ Pooling and Servicing ~~Agreement~~Agreement and the Mortgage Loan Purchase Agreements or the Certificates or any material rights with regard to any Mortgaged Property, or ~~the Administration Agreement~~if adversely determined, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial ~~condition, earnings, prospects, business or properties~~ condition of the ~~Depositor and its subsidiaries~~Depositor; for purposes of the foregoing, ~~taken as~~ such counsel will be permitted to state that he or she has not regarded any legal or governmental actions, investigations or proceedings to be “threatened” unless the potential litigant or governmental authority has manifested to such counsel a ~~whole~~present intention to initiate such actions, investigations or proceedings. (~~xii~~iv) ~~Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties~~ Each of ~~(x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in~~ this Agreement, the ~~Trust~~ Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements has been duly authorized, executed and delivered by the Depositor. (v) No consent, approval, authorization of, registration or filing with, or notice to, any State of Delaware or other governmental agency or body is required for the execution, delivery or performance of, or compliance by, the Depositor with this Agreement, the ~~Purchase Agreement or the Sale~~ Pooling and Servicing Agreement ~~are other than~~ and the Mortgage Loan Purchase Agreements, except (i) such as ~~stated therein~~may be required under the “Blue Sky” laws of any jurisdiction in connection with the purchase and the offer and sale of the Underwritten Certificates by the Underwriters, as to which such counsel may express no opinion and (ii) any recordation of the assignments of the Mortgage Loans required under the Pooling and Servicing Agreement that has not yet been completed. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest will be perfected upon the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above, is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus (and any supplement thereto). (xviiivi) The statements in the Prospectus under the headings ~~"Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles"~~ “ERISA Considerations” and ~~"-- Insolvency of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables"~~“Federal Income Tax Consequences”, to the extent that they ~~constitute~~ describe certain matters of federal law or legal conclusions with respect thereto, provide a fair and accurate summary of such matters and conclusions; (vii) As described in the Prospectus Supplement and assuming compliance with the Pooling and Servicing Agreement, each of [REMIC I and REMIC II] will qualify as a REMIC within the meaning of Sections 860A through 860G (the “REMIC Provisions”) of the Internal Revenue Code of 1986, as amended (the “Code”); (viii) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund created under the Pooling and Servicing Agreement is not required to be registered under the Investment Company Act; (ix) Each of the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement constitutes the legal, valid and binding agreement of the Depositor, enforceable against the Depositor 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 or (c) provisions purporting to prohibit, restrict or condition the assignment of, or grant of a security interest in, the rights under the Mortgage Loan Purchase Agreements or the Pooling and Servicing Agreement or property subject thereto, may be limited by applicable law or considerations of public policy; (x) The Registration Statement, as of its effective date, and the Prospectus, as of the date thereof (in each case, with the exception of any information incorporated by reference therein, any numerical, financial, statistical and computational information included therein, any Mortgage Loan Seller Covered Information, any Master Servicer Covered Information, any Special Servicer Covered Information, any Certificate Administrator Covered Information, any Trust Advisor Covered Information and any Trustee Covered Information), 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; (xi) The statements contained in the Prospectus Supplement under the heading “Description of the Offered Certificates”, insofar as such statements purport to summarize material terms of the Certificates, are correct in all material respects; and (xii) When the Certificates have been duly authorized, executed, authenticated and delivered in the manner contemplated in the Pooling and Servicing Agreement and the Offered Certificates have been paid for by, and sold to the Underwriters pursuant to this Agreement, the Offered Certificates 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 and on certificates furnished by public officials. Such opinion, to the extent covering items (iv), (ix) and (xii), may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto. Such opinion, to the extent covering item (iv) and items (vi) through (xii) may be qualified as an opinion only on the laws of the State of New York and the federal law of the United States. You shall have also been advised by Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, special counsel for the Depositor, in one of the foregoing opinions, dated the Closing Date and satisfactory in form and substance to you and counsel for the Underwriters, substantially to the effect that (i) the Registration Statement became effective on a date certain under the 1933 Act, (ii) to such counsel’s knowledge, the Registration Statement is effective on the Closing Date and (iii) to such counsel’s knowledge, no stop order with respect thereto has been issued by the Commission. In a separate letter addressed only to the Underwriters, Cadwalader W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP shall additionally state that, based on conferences and telephone conversations with representatives of the Mortgage Loan Sellers, the Underwriters, the Depositor, the Trustee, the Certificate Administrator, the Master Servicer, the Special Servicer, the Trust Advisor, and their respective counsel, and (with limited exception) without having reviewed any of the mortgage notes, mortgages or other documents relating to the Mortgage Loans or made any inquiry of any originator of any Mortgage Loan, nothing has come to such counsel’s attention that would lead it to believe that (i) the Prospectus (other than any financial, numerical, statistical or quantitative information included therein), at the date of the Prospectus Supplement or at 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, in the light of the circumstances under which they were made, not misleading, (ii) the Time of Sale Information (other than any financial, numerical, statistical or quantitative information included therein, any Mortgage Loan Seller Covered Information, any Master Servicer Covered Information, any Special Servicer Covered Information, any Certificate Administrator Covered Information, any Trust Advisor Covered Information and any Trustee Covered Information), at the Time of Sale, contained or contains any untrue statement of a material fact or omitted or omits to states 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 (iii) 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 statements therein not misleading. (g) You shall have received from [_______], 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 Preliminary FWP and Prospectus Supplement under the captions “Summary of Prospectus Supplement”, “Description of the Mortgage Pool” and “Yield and Maturity Considerations” and on Annexes [A-1, A-2, A-3 and A-4] to each of the Prospectus Supplement and the Preliminary FWP and in the Term Sheet agrees with the Master Tapes prepared by or on behalf of the Mortgage Loan Sellers, unless non-material deviations are otherwise noted in such ~~counsel~~ letter; and (ii) they have compared the data contained in the Master Tapes 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 non-material deviations are otherwise noted in such letter. (h) You shall have received written confirmation from the Rating Agencies that the ratings assigned to the Underwritten Certificates on the Closing Date are as described in Section 1(a)(xv) and that, as of the Closing Date, no notice has been given of (i) any intended or possible downgrading or (ii) any review or possible changes in such ratings. (i) You shall have received from the Secretary or an Assistant Secretary of the Trustee, in his individual capacity, a certificate, dated the Closing Date, to the effect that the information under the heading “Transaction Parties—The Trustee” in the Prospectus Supplement is true and correct in all material respects. (~~xix~~j) ~~The statements contained in~~ You shall have received from the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary Secretary or an Assistant Secretary of the ~~Notes~~Certificate Administrator, in his individual capacity, a certificate, dated the ~~Indenture~~Closing Date, to the ~~Administration Agreement,~~ effect that the ~~Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.~~information under

Appears in 1 contract

Sources: Underwriting Agreement (SG Commercial Mortgage Securities, LLC)

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 and on and as of the Closing Date. Accordingly, the Underwriters’ obligations under this Bond Purchase Agreement to purchase, to accept delivery of and to pay for the ~~Offered 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 ~~Depositor herein~~Authority and the 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 officers and other officials of the ~~Depositor~~ Authority, the City and the Trustee made in any certificate or document furnished pursuant to the provisions hereof, to the performance by the ~~Depositor~~ Authority, the City and the Trustee of ~~its~~ their respective obligations to be performed hereunder and under the Authority Legal Documents and the City Legal Documents at or prior to the ~~following additional conditions precedent: (a) The Prospectus~~ date hereof and ~~any supplements thereto shall have been filed with the Commission in accordance with the Rules and Regulations and Section 7(a) hereof, and~~ at or prior to the Closing Date, ~~no stop order suspending~~ and also shall be subject to the ~~effectiveness of~~ following additional conditions: (a) On the ~~Registration Statement~~ Closing Date, the Authority Legal Documents and the City Legal Documents shall have been ~~issued~~ duly authorized, executed and ~~no proceedings for that purpose~~ delivered by the Authority and by the City where each is a party, all in substantially the forms heretofore submitted to the Representative, with only such changes as shall have been ~~instituted or~~reasonably agreed to in writing by the Representative, ~~to the knowledge~~ and shall be in full force and effect; and there shall be in full force and effect such resolutions and ordinances of the ~~Depositor or you~~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 ~~by the Commission or by any authority administering any state securities or blue sky law.~~hereby; (b) On the Closing Date, all necessary action of the Authority and the City relating to the 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, ~~you~~ the Underwriters shall have received ~~a letter, dated as of~~ the Closing Date, of KPMG LLP, certified public accountants, substantially in the form of the drafts to which you have previously agreed and otherwise in form and substance satisfactory to you and your counsel. (c) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have occurred (i) any change or any development involving a prospective change in or affecting particularly the business or properties of the Trust, the Depositor, the Company, DaimlerChrysler Corporation or DaimlerChrysler AG whichfollowing documents, in the judgment of the Underwriters, materially impairs the investment quality of the Offered Notes or makes it impractical or inadvisable to market the Offered Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of DaimlerChrysler AG, DaimlerChrysler North America Holding Corporation or the Depositor on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York authorities; (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency or any change in the financial markets if, in the judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, calamity, emergency or any change makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Offered Notes or (vi) a material disruption has occurred in securities settlement or clearance services in the United States. (d) You shall have received an opinion of in-house counsel in the office of the General Counsel of DCFS and the Company, addressed to you and the Indenture Trustee, dated the Closing Date and each case satisfactory in form and substance to ~~you and your counsel, to~~ the ~~effect that~~Underwriters: (i) ~~DCFS has been duly organized and is validly existing as a limited liability company in good standing under the laws~~ each of the State of Michigan with full power and authority to own its properties and conduct its business as presently conducted by it, and to enter into and perform its obligations under this Agreement, the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement, Authority Legal Documents and the ~~Administration Agreement~~City Legal Documents, each duly executed and ~~had at all times, and now has,~~ delivered by the ~~power, authority and legal right to acquire, own, sell and service the Receivables.~~respective parties thereto; (ii) ~~The Company has been duly organized and is validly existing as a limited liability company in good standing under~~ the ~~laws~~ approving opinion, dated the date of the ~~State~~ Closing and addressed to the Authority, of ~~Michigan with full power and authority~~ Bond Counsel in substantially the form of Appendix [ ] to ~~own its properties and conduct its business as presently conducted by it and to enter into and perform its obligations under~~ the ~~Trust Agreement and the Purchase Agreement~~Final Official Statement, and ~~had at all times~~a letter of such counsel, dated the Closing Date, and ~~now has,~~ addressed to the ~~power, authority and legal right~~ Representative to ~~acquire, own, sell and hold~~ the ~~excess cash flow from~~ effect that such opinion may be relied upon by the ~~Reserve Account and~~ Representative to the ~~Fixed Value Payments.~~same extent as if such opinion were addressed to them; (iii) ~~Each~~ a supplemental opinion or opinions of ~~DCFS~~ Bond Counsel addressed to the Representative, in form and substance acceptable to the Representative, and dated the date of the Closing substantially to the following effect: (A) the City and the ~~Company is~~ Authority have duly ~~qualified to do business~~ and ~~is in good standing~~validly executed the Bond Purchase Agreement, and, assuming the due authorization, execution and ~~has obtained all necessary licenses~~ delivery by and ~~approvals, in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would render any Receivable unenforceable by~~ validity against the ~~Depositor~~Underwriters, the ~~Owner Trustee or~~ Bond Purchase Agreement constitutes the ~~Indenture Trustee. (iv) The direction by~~ legal, valid and binding agreement of the ~~Depositor to~~ City and the Owner Trustee to authenticate the Certificates has been duly authorized by the Depositor and, when the Certificates have been duly executed, authenticated and delivered by the Owner Trustee in accordance with the Trust Agreement and delivered, the Certificates will be duly issued and entitled to the benefits and security afforded by the Trust AgreementAuthority, subject as to ~~the enforcement of remedies (x) to applicable~~ bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' ’ rights ~~generally~~ heretofore or hereafter enacted and to the exercise of judicial discretion in appropriate cases; (yB) the statements contained in the Final Official Statement on the cover page and under the headings [“DESCRIPTION OF THE BONDS (other than information relating to ~~general principles~~ DTC and its book-entry only system, as to which no opinion need be expressed),” “PLAN OF FINANCE,” “SECURITY AND SOURCES OF PAYMENT FOR THE BONDS,” “TAX MATTERS,” and in Appendix [ ] – “Summary of ~~equity~~ Principal Legal Documents” and in Appendix [ ] – “Form of Bond Counsel Opinion,” excluding any material that may be treated as included under such captions by cross reference or reference to other documents or sources, insofar as such statements expressly summarize certain provisions of the Site Lease, the Facilities Lease and the Indenture, and the form and content of the Bond Opinion, are accurate in all material respects; and (~~regardless~~ C) the Bonds are exempt from registration under the Securities Act of ~~whether~~ 1933, as amended, and the ~~enforcement~~ Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; (iv) a letter from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, a Professional Corporation (“Disclosure Counsel”), dated the Closing Date and addressed to the Representative, [substantially to the effect that on the basis of the information developed in the course of such ~~remedies~~ firm’s performance of services as Disclosure Counsel in connection with the issuance of the Bonds, such firm is ~~considered~~ of the view, subject to certain limitations to be set forth in such letter, that as of the Closing Date such firm has no reason to believe that the Final Official Statement (excluding therefrom any CUSIP numbers, financial, accounting, statistical or economic, engineering or demographic data; forecasts, charts, numbers, tables, graphs, projections, estimates, assumptions and expressions of opinions, information relating to The Depository Trust Company and the book-entry only system included or referred to therein, and Appendix [ ] to the Final Official Statement, as to all of which such firm expresses no opinion) contained or contains any untrue statement of a ~~proceeding~~ material fact, or omitted or omits, to state any material fact necessary to make the statements therein, in ~~equity or at law).~~the light of the circumstances under which they were made, not misleading;] (v) ~~The direction by the Depositor~~ an opinion of ▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the ~~Indenture Trustee~~ Underwriters, dated the Closing Date, and addressed to ~~authenticate~~ the ~~Notes has been duly authorized by~~ Underwriters, substantially to the ~~Depositor and~~effect that: (A) during the course of serving as counsel to the Underwriters in connection with the issuance of the Bonds and without having undertaken to determine or verify independently, ~~when~~ or assuming any responsibility for the ~~Notes~~ accuracy, completeness or fairness of any of the statements contained in the Final Official Statement, no facts have ~~been duly executed~~ come to the attention of the attorneys in such firm rendering legal services in connection with the issuance of the Bonds that would cause such firm to believe that the Final Official Statement (excluding therefrom the financial engineering and ~~delivered by~~ statistical data, forecasts, charts, numbers, estimates, projections, assumptions and expressions of opinion included in the ~~Owner Trustee~~ Final Official Statement, information regarding DTC and ~~when authenticated by~~ its book-entry system, and the appendices to the Final Official Statement as to all of which no opinion need be expressed), as of the date thereof or the Closing Date, contains any untrue statement of a material fact 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; (B) the Bonds are exempt from registration under the Securities Act of 1933, as amended, and the Indenture ~~Trustee~~ is exempt from qualification under the Trust Indenture Act of 1939, as amended; and (C) the Continuing Disclosure Certificate contains the elements required for the written agreement set forth in ~~accordance with the Indenture and delivered and paid for pursuant to this Agreement~~paragraphs (b)(5)(i), ~~the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, subject as to the enforcement of remedies~~ (xb)(5)(ii) ~~to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally~~ and (yb)(5)(iv) ~~to general principles~~ of ~~equity (regardless of whether~~ the ~~enforcement of such remedies is considered in a proceeding in equity or at law).~~Rule; (vi) ~~The Purchase Agreement~~the opinion of the General Counsel to the Authority dated the Closing Date and addressed to the Underwriters, substantially to the ~~Trust Agreement,~~ effect that: (A) the ~~Sale~~ Authority is a joint exercise of powers authority duly organized and ~~Servicing Agreement~~ validly existing under the laws of the State; (B) the Authority Resolutions were duly adopted at regular meetings of the Authority that were called and ~~the Administration Agreement have been duly authorized, executed~~ held pursuant to law and ~~delivered~~ with all public notice required by ~~DCFS~~law and at which a quorum was present and acting throughout, and are ~~legal~~in full force and effect and have not been amended or repealed; (C) other than as otherwise disclosed in the Final Official Statement, ~~valid and binding obligations of DCFS enforceable against DCFS~~ there is no action, suit, proceeding or investigation at law or in ~~accordance with their terms~~equity before or by any court, ~~except (x) the enforceability thereof may be subject to bankruptcy~~public board or body, ~~insolvency~~pending or, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the ~~discretion~~ best knowledge of such counsel after reasonable investigation, threatened against or affecting the Authority, to restrain or enjoin the execution, delivery or sale of the ~~court before which any proceeding therefor may be brought. (vii) This Agreement has been duly authorized, executed and delivered by DCFS. (viii) The Purchase Agreement and~~ Bonds or the ~~Trust Agreement have been duly authorized, executed and delivered by the Company and~~ collection or payment of Revenues that are the ~~legal, valid and binding obligations~~ source of security for the Company enforceable against the Company in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (ix) Neither the transfer of the Receivables from the Depositor to the Trust, nor the assignment of the Owner Trust Estate to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of this Agreement, the Purchase Agreement, the Trust Agreement, the Administration AgreementBonds, or the ~~Sale and Servicing Agreement by DCFS~~pledge thereof, ~~nor~~ or in any way contesting or affecting the validity or enforceability of the Bonds or the Authority Legal Documents, or in any way contesting or affecting the existence of the Authority or the title of any official of the Authority to such person’s office, or contesting the power of the Authority or its authority with respect to the Bonds or the Authority Legal Documents or contesting the exclusion of interest on the Bonds from gross income for Federal income tax purposes or contesting the completeness or accuracy of the Preliminary Official Statement or the Final Official Statement or any supplement or amendment thereto or asserting that the Preliminary Official Statement or the Final Official 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, in the light of the circumstances under which they were made, not misleading; (D) the execution and delivery of the ~~Trust Agreement~~ Authority Legal Documents, the adoption of the Authority Resolutions, and ~~the Purchase Agreement~~ compliance by the ~~Company, nor~~ Authority with the consummation of any transactions contemplated in this Agreement, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement or the Sale and Servicing Agreement (such agreements, excluding this Agreement, being, collectively, the "Basic Documents"), nor the fulfillment of the terms thereof by DCFS, the Company or the Trust, as the case may be, will conflict with, or result in a material breach, violation or acceleration of, or constitute a default under, any term or provision of the articles of organization or operating agreement of DCFS or the Company, or of any indenture or other material agreement or material instrument to which DCFS or the Company is a party or by which either of them is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (x) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of the Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, (3) that might materially and adversely affect the performance by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, or the Administration Agreement, or (4) that might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, the Purchase Agreement or the Trust Agreement. (xi) To the best knowledge of such counsel and except as set forth in the Prospectus (and any supplement thereto), no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any material agreement to which the Depositor or the Company is a party or by which either of them is bound, which default has or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Depositor and its subsidiaries, taken as a whole. (xii) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of (x) the Company contained in the Purchase Agreement and the Trust Agreement are other than as stated therein or (y) DCFS contained in this Agreement, the Trust Agreement, the Purchase Agreement or the Sale and Servicing Agreement are other than as stated therein. (xiii) The Depositor is the sole owner of all right, title and interest in, and has good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Sale and Servicing Agreement, vests in the Trust all interests that are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances except as specifically permitted pursuant to the Sale and Servicing Agreement or any other Basic Document. (xiv) Immediately prior to the transfer of the Receivables to the Trust, the Depositor's interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected and constituted a perfected first priority interest therein. (xv) The Indenture constitutes a grant by the Trust to the Indenture Trustee of a valid security interest in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each provisions of the foregoing, ~~which security interest~~ under the circumstances contemplated thereby, do not and will ~~be perfected upon~~ not in any material respect conflict with or constitute on the ~~filing~~ part of the ~~UCC-1 financing statements with the Secretary of State of the State of Delaware and will constitute~~ Authority a ~~first priority perfected security interest therein. No filing~~ breach or default under any agreement or other ~~action, other than~~ instrument to which the ~~filing of the UCC-1 financing statements with the Secretary of State of the State of Delaware referred to above,~~ Authority is necessary to perfect and maintain the interest or the security interest of the Indenture Trustee in the Receivables, the security interests in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xvi) The Receivables are tangible chattel paper as defined in the UCC. (xvii) The Sale and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase Agreement and the Administration Agreement conform in all material respects with the descriptions thereof contained in the Prospectus a party (and ~~any supplement thereto). (xviii) The statements in the Prospectus under the headings "Risk Factors -- Trusts May Not Have a Perfected Security Interest in Certain Financed Vehicles" and "-- Insolvency~~ of the Depositor May Result in Delays, Reductions or Loss of Payments to Securityholders" and "Certain Legal Aspects of the Receivables", to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by which such counsel ~~and are correct in all material respects. (xix~~is aware after reasonable investigation) ~~The statements contained in~~ or by which it is bound or by any existing law, regulation, court order or consent decree to which the Prospectus and any supplement thereto under the headings "Payments on the Notes", "Payments on the Securities", "Form of Securities and Transfers", "Principal Documents", "Sale Provisions", "Servicing" and "The Indenture", insofar as such statements constitute a summary of the Notes, the Indenture, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Trust Agreement, constitute a fair summary of such documents.Authority is subject;

Appears in 1 contract

Sources: Bond Purchase Agreement

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