Common use of Conditions Precedent to the Obligations of the Underwriter Clause in Contracts

Conditions Precedent to the Obligations of the Underwriter. The obligation of the Underwriters to purchase and pay for the Offered Securities are subject to the accuracy of the representations and warranties on the part of the Transferor and Metris, to the accuracy of the statements of officers of the Transferor and Xxxxxx made pursuant to the provisions hereof, to the performance by the Transferor of its obligations hereunder and to the following additional conditions precedent: (a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the second Business Day following the date of this Agreement or such later date as shall have been consented to by the Representative; 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 Transferor or Metris, shall be contemplated by the Commission. If the Transferor has elected to rely upon Rule 430A of the 1933 Act Regulations, the price of the Offered Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the 1933 Act Regulations. (b) Each of the Transferor and Xxxxxx shall have delivered to the Representative a certificate, dated the Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each Designated Agreement and this Agreement and that: (i) (A) the representations and warranties of the Transferor and Metris, as applicable, 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 representations and warranties of the Transferor, Metris and Direct Merchants Bank, as applicable, in each Designated Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on and as of the Closing Date except that to the extent that any such representation or warranty in this clause (B) expressly relates to an earlier date, such representation or warranty is true and correct in all material respects at and as of such earlier date; (ii) the Transferor or Metris, as applicable, has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the Transferor's or Metris's knowledge, threatened by the Commission as of the Closing Date; and (iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus contains an 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. (c) Since the respective dates as of which information is given in the Prospectus, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the business or assets of the Trust, the Transferor, or Direct Merchants Bank or any material adverse change in the financial position or results of operations of the Trust, the Transferor, or Direct Merchants Bank otherwise than as set forth or contemplated in the Prospectus which in any such case makes it impracticable or inadvisable in the Representative's good faith judgment to proceed with the public offering or the delivery of the Offered Securities on the terms and in the manner contemplated in the Prospectus as amended or supplemented. (d) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any material adverse change in the financial markets for asset backed securities in the United States or any outbreak of hostilities or other calamity or crisis or (ii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by Federal or New York authorities, the effect of which with respect to clause (i) or (ii) is such as to make it, in the good faith judgment of the Representative, impracticable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities. (e) The Representative shall have received: (1) The favorable opinion of Xxxx X. Xxxxxxxx, general counsel of Xxxxxx, dated the Closing Date and addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Representative, to the effect that: (i) Metris is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. (ii) The Transferor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is duly qualified to transact business and is in good standing in each state in which the conduct of its business requires such qualification except where the failure to so qualify does not have a material adverse effect on the financial condition or business of the Transferor. (iii) Direct Merchants Bank is a national banking association formed under the laws of the United States of America and is authorized to conduct the business of a special purpose credit card bank, as described in the Prospectus, and had at all relevant times and now has the power, authority and legal right to acquire, own and service the Accounts and the Receivables; (iv) Each Designated Agreement to which Metris, Direct Merchants Bank or the Transferor is a party and this Agreement has been duly and validly authorized, executed and delivered by each of Metris, Direct Merchants Bank and the Transferor, as applicable. (v) The sale of the Investor Securities and the direction by the Transferor to the Trustee to execute, authenticate and deliver the Investor Securities have been duly authorized by the Transferor. The Investor Securities have been duly and validly authorized and executed by the Transferor. (vi) The execution and delivery of any Designated Agreement or of the Underwriting Agreement and the execution and delivery to the Trustee of the Investor Securities, the performance of the transactions contemplated by this

Conditions Precedent to the Obligations of the Underwriter. The obligation of the Underwriters Underwriter to purchase and pay for the Offered Securities are Notes is subject to the accuracy of the representations and warranties on the part of GECC and the Transferor Depositor herein and Metrisin the Related Documents to which they are parties as of the Closing Date, to the accuracy of the statements of officers or managers of GECC and the Transferor and Xxxxxx Depositor made pursuant to the provisions hereof, to the performance by each of GECC and the Transferor Depositor of its obligations hereunder and to the following additional conditions precedent: (a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the second Business Day day following the date of this Underwriting Agreement or such later date as shall have been consented to by the RepresentativeUnderwriter; 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 GECC or the Transferor or MetrisDepositor, shall be contemplated by the Commission. If the Transferor has elected to rely upon Rule 430A of the 1933 Act Regulations, the price of the Offered Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the 1933 Act Regulations. (b) Each of GECC and the Transferor and Xxxxxx Depositor shall have delivered on or before the Closing Date to the Representative Underwriter a certificate, dated as of the Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Prospectus, each Designated Agreement Related Document and this Underwriting Agreement and that: (i) (A) to the best of such person’s knowledge, the representations and warranties of GECC and/or the Transferor and MetrisDepositor, as applicablethe case may be, in this Underwriting Agreement and in each Related Document to which it is a party 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 representations and warranties of the Transferor, Metris and Direct Merchants Bank, as applicable, in each Designated Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on and as of the Closing Date except that to the extent that any such representation or warranty in this clause (B) expressly relates to an earlier date, such representation or warranty is true and correct in all material respects at and as of such earlier dateDate; (ii) each of GECC and the Transferor or MetrisDepositor, as applicablethe case may be, has complied in all material respects with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or the Transferor's or Metris's Depositor’s knowledge, threatened by the Commission as of the Closing Date; and (iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement or the Prospectus, each as amended and supplemented as of the Closing Date and as of the Time of Sale, contains an any untrue statement of a material fact or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) Since the respective dates as of which information is given in the Prospectus, Prospectus Supplement and the Supplement, there shall not have occurred any material adverse change, change or any development involving a prospective material adverse change, change in or affecting particularly the business or assets of the TrustCompany, the TransferorDepositor, or Direct Merchants Bank or any material adverse change in the financial position or results of or operations of the TrustCompany, the Transferor, Depositor or Direct Merchants Bank GECC otherwise than as set forth or contemplated in the Prospectus as of the date hereof, which in any such case makes the Underwriter’s reasonable judgment materially impairs the investment quality of the Offered Notes so as to make it impracticable or inadvisable in the Representative's good faith judgment to proceed with the public offering or the delivery of the Offered Securities Notes on the terms and in the manner contemplated in the Base Prospectus, Prospectus as amended or supplementedSupplement and the Supplement. (d) Subsequent The Underwriter shall have received from counsel (who shall be satisfactory to the execution Underwriter) for GECC and delivery of this Agreementthe Depositor, there shall not have occurred (i) any material adverse change in the financial markets for asset backed securities in the United States or any outbreak of hostilities or other calamity or crisis or (ii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by Federal or New York authorities, the effect of which with respect to clause (i) or (ii) is such as to make it, in the good faith judgment of the Representative, impracticable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities. (e) The Representative shall have received: (1) The favorable opinion of Xxxx X. Xxxxxxxx, general counsel of Xxxxxxan opinion, dated the Closing Date and Date, addressed to the Underwriters Underwriter and satisfactory in form and substance to the Representative Underwriter and to counsel to the RepresentativeUnderwriter, relating to the effect that: (i) Metris is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delawarecertain corporate matters. (iie) The Transferor is Underwriter shall have received from counsel (who shall be satisfactory to the Underwriter) for GECC and the Depositor, a corporation duly organizedsigned negative assurance letter, validly existing dated the Closing Date, addressed to the Underwriter and satisfactory in good standing under form and substance to the laws of Underwriter and to counsel to the State of Delaware Underwriter, relating to certain matters with respect to the Registration Statement and is duly qualified to transact business and is in good standing in each state in which the conduct of its business requires such qualification except where the failure to so qualify does not have a material adverse effect on the financial condition or business of the Transferor. (iii) Direct Merchants Bank is a national banking association formed under the laws of the United States of America and is authorized to conduct the business of a special purpose credit card bank, as described in the Prospectus, and had at all relevant times and now has the power, authority and legal right to acquire, own and service the Accounts and the Receivables; (iv) Each Designated Agreement to which Metris, Direct Merchants Bank or the Transferor is a party and this Agreement has been duly and validly authorized, executed and delivered by each of Metris, Direct Merchants Bank and the Transferor, as applicable. (v) The sale of the Investor Securities and the direction by the Transferor to the Trustee to execute, authenticate and deliver the Investor Securities have been duly authorized by the Transferor. The Investor Securities have been duly and validly authorized and executed by the Transferor. (vi) The execution and delivery of any Designated Agreement or of the Underwriting Agreement and the execution and delivery to the Trustee of the Investor Securities, the performance of the transactions contemplated by this

Conditions Precedent to the Obligations of the Underwriter. The obligation of the Underwriters to purchase and pay for the Offered Securities Certificates are subject to the accuracy of the representations and warranties on the part of the Transferor and Metris, to the accuracy of the statements of officers of the Transferor and Xxxxxx made pursuant to the provisions hereof, to the performance by the Transferor of its obligations hereunder and to the following additional conditions precedent: (a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the second Business Day day following the date of this Agreement or such later date as shall have been consented to by the Representative; 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 Transferor or Metris, shall be contemplated by the Commission. If the Transferor has elected to rely upon Rule 430A of the 1933 Act Regulations, the price of the Offered Securities Certificates and any price-related pricerelated information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the 1933 Act Regulations. (b) Each of the Transferor and Xxxxxx shall have delivered to the Representative a certificate, dated the Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each Designated Agreement and this Agreement and that: (i) (A) the representations and warranties of the Transferor Transferor, and Metris, Metris as applicable, 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 representations and warranties of the Transferor, Metris and Direct Merchants Bank, as applicable, in each Designated Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on and as of the Closing Date except that to the extent that any such representation or warranty in this clause (B) expressly relates to an earlier date, such representation or warranty is true and correct in all material respects at and as of such earlier dateDate; (ii) the Transferor or Metris, as applicable, has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the Transferor's or MetrisXxxxxx's knowledge, threatened by the Commission as of the Closing Date; and (iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus contains an 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. (c) Since the respective dates as of which information is given in the Prospectus, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the business or assets of the Trust, the Transferor, or Direct Merchants Bank or any material adverse change in the financial position or results of operations of the Trust, the Transferor, or Direct Merchants Bank otherwise than as set forth or contemplated in the Prospectus which in any such case makes it impracticable or inadvisable in the Representative's good faith judgment to proceed with the public offering or the delivery of the Offered Securities Certificates on the terms and in the manner contemplated in the Prospectus as amended or supplemented. (d) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any material adverse change in the financial markets for asset backed securities in the United States or any outbreak of hostilities or other calamity or crisis or (ii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by Federal or New York authorities, the effect of which with respect to clause (i) or (ii) is such as to make it, in the good faith judgment of the Representative, impracticable to market the Offered Securities Certificates or to enforce contracts for the sale of the Offered SecuritiesCertificates. (e) The Representative shall have received: (1) The favorable opinion of Xxxx X. Xxxxxxxx, general counsel of Xxxxxx, dated the Closing Date and addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Representative, to the effect that: (i) Metris is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. (ii) The Transferor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is duly qualified to transact business and is in good standing in each state in which the conduct of its business requires such qualification except where the failure to so qualify does not have a material adverse effect on the financial condition or business of the Transferor. (iii) Direct Merchants Bank is a national banking association formed under the laws of the United States of America and is authorized to conduct transact the business of a special purpose credit card bankbanking, including to own its assets and to transact its business as described in the Prospectus, and had at all relevant times and now has the power, authority and legal right to acquire, own and service the Accounts and the Receivables; (iv) Each Designated Agreement to which Metris, Direct Merchants Bank or the Transferor is a party and this Agreement has been duly and validly authorized, executed and delivered by each of Metris, Direct Merchants Bank and the Transferor, as applicable. (v) The sale of the Investor Securities Certificates and the direction by the Transferor to the Trustee to execute, authenticate and deliver the Investor Securities Certificates have been duly authorized by the Transferor. The Investor Securities Certificates have been duly and validly authorized and executed by the Transferor. (vi) The execution and delivery of any Designated Agreement or of the Underwriting Agreement and the execution and delivery to the Trustee of the Investor SecuritiesCertificates, the performance of the transactions contemplated by thisthis Agreement or any Designated Agreement and the fulfillment of the terms thereof will not (i) violate any Requirement of Law applicable to Metris or the Transferor (assuming compliance with all applicable state securities and Blue Sky laws, as to which such counsel expresses no opinion), (ii) require any filing (except for filings under the UCC) or registration under any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to Metris or the Transferor, except for such filings or registrations as have already been made and are in full force and effect or (iii) violate, result in any breach of any of the material terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under any currently existing material indenture, contract, agreement, mortgage, deed of trust or other instrument which has been attached as an exhibit to the report on Form 10-K filed by Xxxxxx. (vii) There are no legal or governmental proceedings pending or, to such counsel's knowledge, threatened that are required to be disclosed in the Registration Statement, other than those disclosed therein. There are no proceedings or investigations pending or, to the best of such counsel's knowledge, threatened against Metris or the Transferor, before any Governmental Authority (i) asserting the invalidity of any Designated Agreement or of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated hereby, (iii) seeking any determination or ruling that would materially and adversely affect the performance by Metris or the Transferor of its obligations thereunder, (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability thereof or (v) seeking to affect adversely the tax attributes of the Trust or the Investor Certificates. (viii) No consent, approval, authorization or order of, or registration, filing (except for filings under the UCC) or declaration with, any court or governmental agency or body is required in connection with (i) the execution, delivery and performance by Metris or the Transferor of any Designated Agreement or of this Agreement or (ii) the offer, sale or delivery of the Investor Certificates, except such as shall have been obtained or made, as the case may be, or will be obtained or made, as the case may be, prior to the Closing Date and except such as may be required under state securities or Blue Sky laws. (ix) Metris has full corporate power and authority to sell and assign the Receivables to the Transferor pursuant to the terms of the Purchase Agreement and has duly authorized such sale and assignment by all necessary corporate action. The Transferor has full corporate power and authority to transfer the Receivables to the Trust pursuant to the terms of the Pooling and Servicing Agreement and has duly authorized such transfer by all necessary corporate action. (x) Direct Merchants Bank has the power and authority to execute and deliver the Bank Purchase Agreement and the Pooling and Servicing Agreement and to consummate the transactions contemplated therein; (xi) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation by Direct Merchants Bank of the transactions contemplated in the Bank Purchase Agreement or the Pooling and Servicing Agreement, except for such consents, approvals, orders or fillings as may be required under federal or state securities laws and except for such fillings as may be required to perfect interests in the Receivables pursuant to the Bank Purchase Agreement; (xii) Neither the execution, delivery and performance by Direct Merchants Bank of its obligations under the Bank Purchase Agreement or the Pooling and Servicing Agreement, the transfer of the Receivables to Metris, the issuance and sale of the Investor Certificates, nor the consummation of any other of the transactions contemplated in the Bank Purchase Agreement or the Pooling and Servicing Agreement will conflict with, result in a breach of or violation of any of the terms of, or constitute a default under, the Articles of Association or by-laws of the Bank, each as amended, or any rule, order, statute or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over Direct Merchants Bank or the terms of any material indenture or other material agreement or instrument known to such counsel to which Direct Merchants Bank is a party or by which it or its properties are bound; and (xiii) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge, threatened before any court, administrative agency or other tribunal (x) asserting the invalidity of the Bank Purchase Agreement or the Pooling and Servicing Agreement or (y) seeking to prevent the issuance of the Investor Certificates or the consummation of any of the transactions contemplated by the Bank Purchase Agreement or the Pooling and Servicing Agreement or the Investor Certificates, which might materially and adversely affect the performance by Direct Merchants Bank of its obligations under, or the validity or enforceability of, the Bank Purchase Agreement or the Pooling and Servicing Agreement or the Investor Certificates. (xiv) Metris is duly qualified to transact business and is in good standing in each state in which the conduct of its business requires such qualification except where the failure to so qualify does not have a material adverse effect on the financial condition or business of Metris. (xv) Each of Metris and the Transferor 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 Receivables or the Investor Certificates or the financial condition of Metris or the Transferor, and neither Metris nor the Transferor 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, operations or financial condition. (2) The favorable opinion of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Transferor and Xxxxxx, dated the Closing Date and addressed to the Underwriters and satisfactory in form and substance to the Representative and counsel to the Representative; to the effect that: (i) Each of the Designated Agreements (including, with respect to the Agreement, the allocation provisions thereof) to which any of Metris, the Transferor, the Bank and the Servicer (the "Companies") is a party, constitutes a valid and binding obligation of each of them, as applicable, enforceable against each of Metris, the Transferor and Direct Merchants Bank, as applicable, in accordance with their respective terms, except to the extent enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, receivership or other similar laws now or hereafter in effect relating to creditors' rights generally and, in the case of (for creditors of national banking associations, with respect to the Bank) (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and (c) the qualification that certain remedial provisions of the Designated Agreements may be unenforceable in whole or in part, but the inclusion of such provisions does not affect the validity of any such agreement taken as a whole each of such agreements, together with applicable law, contains adequate provisions for the practical realization of the benefits of the security created by such Designated Agreements; (ii) Neither the execution, delivery or performance by any of the Companies of any of the Designated Agreements to which it is a party nor the compliance by any of the companies with the terms and provisions thereof will contravene any provision of any Applicable Laws. For purposes of this paragraph (ii) and paragraph (iii) below, "Applicable Laws" means those laws, rules and regulations of the State of New York, the United States of America and the Delaware General Corporation Law which, in our experience, are normally applicable to transactions of the type contemplated by the Designated Agreements.

Conditions Precedent to the Obligations of the Underwriter. The obligation of the Underwriters to purchase and pay for the Offered Securities are Certificates is subject to the accuracy of the representations and warranties on the part of the Transferor DFS and MetrisDeutsche FRLP herein, to the accuracy of the statements of officers of the Transferor DFS and Xxxxxx Deutsche FRLP made pursuant to the provisions hereof, to the performance by the Transferor DFS and Deutsche FRLP of its obligations hereunder and to the following additional conditions precedent: (a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the second Business Day day following the date of this Agreement or such later date as shall have been consented to by the Representative; 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 Transferor DFS or MetrisDeutsche FRLP, shall be contemplated by the Commission. If the Transferor Deutsche FRLP has elected to rely upon Rule 430A of the 1933 Act Regulations, the price of the Offered Securities Certificates and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the 1933 Act Regulations. (b) Each of the Transferor DFS and Xxxxxx Deutsche FRLP shall have delivered to the Representative a certificate, dated the Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each Designated Agreement and this Agreement and that: (i) (A) the representations and warranties of the Transferor and MetrisDFS and/or Deutsche FRLP, as applicablethe case may be, in each Designated Agreement and 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 representations and warranties of the Transferor, Metris and Direct Merchants Bank, as applicable, in each Designated Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on and as of the Closing Date except that to the extent that any such representation or warranty in this clause (B) expressly relates to an earlier date, such representation or warranty is true and correct in all material respects at and as of such earlier dateDate; (ii) the Transferor or Metriseach of DFS and Deutsche FRLP, as applicablethe case may be, has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the TransferorDFS's or MetrisDeutsche FRLP's knowledge, threatened by the Commission as of the Closing Date; and (iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus contains an any untrue statement of a material fact or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) Since the respective dates as of which information is given in the ProspectusProspectus as amended or supplemented, there shall not have occurred any material adverse change, change or any development involving a prospective material adverse change, in or affecting particularly the business or assets of the Trust, the Transferor, Deutsche FRLP or Direct Merchants Bank DFS or any material adverse change in the financial position or results of or operations of the Trust, the Transferor, Deutsche FRLP or Direct Merchants Bank DFS otherwise than as set forth or contemplated in the Prospectus which in any such case makes it impracticable or to inadvisable in the Representative's good faith reasonable judgment to proceed with the public offering or the delivery of the Offered Securities Certificates on the terms and in the manner contemplated in the Prospectus as amended or supplemented. (d) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of DFS or Deutsche FRLP which, in the Representative's judgment, materially impairs the investment quality of the Offered Certificates, (ii) any material adverse change in the financial markets for asset backed securities in the United States or any outbreak of hostilities or other calamity or crisis crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable to market the Offered Certificates or to enforce contracts for the sale of the Offered Certificates, (iiiii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by Federal Federal, Missouri or New York authorities, the effect of which with respect to clause (i) authorities or (iiiv) is such as to make it, any event that would constitute a default under this Agreement or default in the good faith judgment performance of DFS's or Deutsche FRLP's obligations under any Designated Agreement or which, with the Representativepassage of time or the giving of notice or both, impracticable to market the Offered Securities or to enforce contracts for the sale of the Offered Securitieswould constitute such default. (e) The Representative shall have received: received from counsel (1who shall be satisfactory to the Representative) The favorable opinion of Xxxx X. Xxxxxxxxfor DFS and Deutsche FRLP, general counsel of Xxxxxxan opinion, dated the Closing Date and addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Representative, with respect to the matters set forth in Exhibit A hereto. (f) The Representative shall have received from Xxxxx Xxxx, special counsel for Deutsche FRLP, an opinion, dated the Closing Date and satisfactory in form and substance to the Representative and to counsel to the Underwriters, to the effect that:that the information in the Prospectus under "State and Local Tax Consequences," to the extent it constitutes matters of Missouri law or legal conclusions with respect thereto, has been reviewed by such counsel and is correct in all material respects and the opinions (addressed to the Underwriters) dated the Closing Date and required by any rating agency. (g) The Representative shall have received from Xxxxx, Xxxxx & Xxxxx, special counsel to DFS and Deutsche FRLP, an opinion, dated the Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters. (h) The Representative shall have received from Pryor, Cashman, Xxxxxxx & Xxxxx, counsel for the Trustee, an opinion, dated the Closing Date and addressed to the Underwriters, DFS and Deutsche FRLP and satisfactory in form and substance to the Representative and to counsel to the Underwriters, in substantially the form of Exhibit B hereto. (i) Metris is a corporation duly incorporatedThe Representative shall have received an officer's certificate dated the Closing Date of the chairman of the board, validly existing the president, an executive vice president or the treasurer of the Trustee in which such officer shall state that, to the best of his/her knowledge after reasonable investigation, the representations and warranties of the Trustee contained in good standing the Pooling and Servicing Agreement are true and correct in all material respects, and that the Trustee has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied under the laws Pooling and Servicing Agreement at or prior to the Closing Date. (j) The Representative shall have received a copy of a ratings letter confirming that the Class A Certificates have been rated in the highest rating category by at least one of Xxxxx'x Investors Service, Inc., Standard & Poor's Ratings Services and Fitch Investors Service Inc., and such ratings shall not have been reduced or withdrawn and that the Class B Certificates have been rated in one of the three highest rating categories by at least one of Xxxxx'x Investors Service, Inc., Standard & Poor's Ratings Services and Fitch Investors Service Inc., and such ratings shall not have been reduced or withdrawn. (k) The Trustee shall have furnished to the Representative a certificate of the Trustee, signed by one or more duly authorized officers of the Trustee, dated the Closing Date, as to the due acceptance of the Pooling and Servicing Agreement by the Trustee and the due execution and delivery of the Offered Certificates by the Trustee thereunder and such other matters as the Representative shall reasonably request. (l) Counsel to DFS and Deutsche FRLP shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Certificates, which opinion shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the Closing Date. (m) The Representative shall have received a letter, dated the Closing Date and addressed to the Underwriters, from KPMG Peat Marwick LLP certified public accountants, substantially in the form heretofore approved by the Representative and counsel to the Underwriters. (n) The Representative shall have received a copy of (i) a file- stamped acknowledgment copy of the UCC-1 financing statement on Form UCC-1 filed with the Secretary of State of the State of Delaware. Missouri with respect to the transfer of the Receivables and the Collateral Security by DFS to Deutsche FRLP pursuant to the Receivables Contribution and Sale Agreement, identifying the Receivables and the Collateral Security as collateral and naming DFS as debtor and Deutsche FRLP as the secured party, and (ii) The Transferor is a corporation duly organized, validly existing and in good standing under file-stamped acknowledgment copy of the laws UCC-1 financing statement on Form UCC-1 filed with the Secretary of State of the State of Delaware and is duly qualified Missouri with respect to transact business and is in good standing in each state in which the conduct of its business requires such qualification except where the failure to so qualify does not have a material adverse effect on the financial condition or business transfer of the TransferorReceivables and the Collateral Security by Deutsche FRLP to the Trustee pursuant to the Pooling and Servicing Agreement, identifying the Receivables and the Collateral Security as collateral and naming Deutsche FRLP as debtor and the Trustee as the secured party. (iiio) Direct Merchants Bank is a national banking association formed under All documents incident to the laws of the United States of America and is authorized to conduct the business of a special purpose credit card bank, as described in the Prospectus, and had at all relevant times and now has the power, authority and legal right to acquire, own and service the Accounts and the Receivables; (iv) Each Designated Agreement to which Metris, Direct Merchants Bank or the Transferor is a party Agreements and this Agreement has been duly shall be reasonably satisfactory in form and validly authorized, executed substance to the Underwriters and delivered counsel to the Underwriters; and all actions taken by each of Metris, Direct Merchants Bank Deutsche FRLP to authorize the offering and the Transferor, as applicable. (v) The sale of the Investor Securities Offered Certificates, shall be reasonably satisfactory in form and substance to the direction Underwriters and counsel to the Underwriters; and DFS and/or Deutsche FRLP shall furnish the Underwriters and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Underwriters or counsel to the Underwriters shall reasonably request. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Transferor Representative by notice to the Trustee Seller at any time at or prior to executeClosing Time, authenticate and deliver the Investor Securities have been duly authorized by the Transferor. The Investor Securities have been duly and validly authorized and executed by the Transferor. (vi) The execution and delivery such termination shall be without liability of any Designated Agreement or of the Underwriting Agreement and the execution and delivery party to the Trustee of the Investor Securities, the performance of the transactions contemplated by thisany other party except as provided in Section 5 hereof.

Conditions Precedent to the Obligations of the Underwriter. The obligation of the Underwriters to purchase and pay for the Offered Securities are subject to the accuracy of the representations and warranties on the part of the Transferor and Metris, to the accuracy of the statements of officers of the Transferor and Xxxxxx made pursuant to the provisions hereof, to the performance by the Transferor of its obligations hereunder and to the following additional conditions precedent: (a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the second Business Day following the date of this Agreement or such later date as shall have been consented to by the Representative; 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 Transferor or Metris, shall be contemplated by the Commission. If the Transferor has elected to rely upon Rule 430A of the 1933 Act Regulations, the price of the Offered Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the 1933 Act Regulations. (b) Each of the Transferor and Xxxxxx shall have delivered to the Representative a certificate, dated the Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each Designated Agreement and this Agreement and that: (i) (A) the representations and warranties of the Transferor and Metris, as applicable, 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 representations and warranties of the Transferor, Metris and Direct Merchants Bank, as applicable, in each Designated Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on and as of the Closing Date except that to the extent that any such representation or warranty in this clause (B) expressly relates to an earlier date, such representation or warranty is true and correct in all material respects at and as of such earlier date; (ii) the Transferor or Metris, as applicable, has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the Transferor's or Metris's knowledge, threatened by the Commission as of the Closing Date; and (iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus contains an 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. (c) Since the respective dates as of which information is given in the Prospectus, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the business or assets of the Trust, the Transferor, or Direct Merchants Bank or any material adverse change in the financial position or results of operations of the Trust, the Transferor, or Direct Merchants Bank otherwise than as set forth or contemplated in the Prospectus which in any such case makes it impracticable or inadvisable in the Representative's good faith judgment to proceed with the public offering or the delivery of the Offered Securities on the terms and in the manner contemplated in the Prospectus as amended or supplemented. (d) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any material adverse change in the financial markets for asset backed securities in the United States or any outbreak of hostilities or other calamity or crisis or (ii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by Federal federal or New York authorities, the effect of which with respect to clause (i) or (ii) is such as to make it, in the good faith judgment of the Representative, impracticable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities. (e) The Representative shall have received: (1) The favorable opinion of Xxxx X. Xxxxxxxx, general counsel of Xxxxxx, dated the Closing Date and addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Representative, to the effect that: (i) Metris is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. (ii) The Transferor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is duly qualified to transact business and is in good standing in each state in which the conduct of its business requires such qualification except where the failure to so qualify does not have a material adverse effect on the financial condition or business of the Transferor. (iii) Direct Merchants Bank is a national banking association formed under the laws of the United States of America and is authorized to conduct the business of a special purpose credit card bank, as described in the Prospectus, and had at all relevant times and now has the power, authority and legal right to acquire, own and service the Accounts and the Receivables; (iv) Each Designated Agreement to which Metris, Direct Merchants Bank or the Transferor is a party and this Agreement has been duly and validly authorized, executed and delivered by each of Metris, Direct Merchants Bank and the Transferor, as applicable. (v) The sale of the Investor Securities and the direction by the Transferor to the Trustee to execute, authenticate and deliver the Investor Securities have been duly authorized by the Transferor. The Investor Securities have been duly and validly authorized and executed by the Transferor. (vi) The execution and delivery of any Designated Agreement or of the Underwriting Agreement and the execution and delivery to the Trustee of the Investor Securities, the performance of the transactions contemplated by thisthis Agreement or any Designated Agreement and the fulfillment of the terms thereof will not (i) violate any Applicable Laws (assuming compliance with all applicable state securities and Blue Sky laws, as to which such counsel expresses no opinion), (ii) require any Governmental Approval (except for filings under the UCC, compliance with all applicable state securities and Blue Sky laws, as to which such counsel expresses no opinion, and such filings or registrations as have already been made and are in full force and effect or (iii) violate, result in any breach of any of the material terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under any currently existing material indenture, contract, agreement, mortgage, deed of trust or other instrument which has been attached as an exhibit to the report on Form 10-K filed by Xxxxxx. For purposes of this paragraph (vi), "Applicable Laws" means those laws, rules and regulations of the State of Minnesota and the United States of America which, in such counsel's experience, are normally applicable to the ordinary business operations of Metris or the Transferor and transactions of the type contemplated by the Designated Agreements. For the purposes of this paragraph (vi), the term "Governmental Approval" means any consent, approval, license, authorization or validation of, or filing, recording or registration with, any Governmental Authority pursuant to Applicable Laws, and the term "Governmental Authority" means any Minnesota or federal executive, legislative, judicial, administrative or regulatory body.

Conditions Precedent to the Obligations of the Underwriter. The obligation of the Underwriters to purchase and pay for the Offered Securities Certificates are subject to the accuracy of the representations and warranties on the part of the Transferor and Metris, to the accuracy of the statements of officers of the Transferor and Xxxxxx made pursuant to the provisions hereof, to the performance by the Transferor of its obligations hereunder and to the following additional conditions precedent: (a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the second Business Day following the date of this Agreement or such later date as shall have been consented to by the Representative; 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 Transferor or Metris, shall be contemplated by the Commission. If the Transferor has elected to rely upon Rule 430A of the 1933 Act Regulations, the price of the Offered Securities Certificates and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations within the prescribed time period, and prior to the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the 1933 Act Regulations. (b) Each of the Transferor and Xxxxxx shall have delivered to the Representative a certificate, dated the Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each Designated Agreement and this Agreement and that: (i) (A) the representations and warranties of the Transferor and Metris, as applicable, 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 representations and warranties of the Transferor, Metris and Direct Merchants Bank, as applicable, in each Designated Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on and as of the Closing Date except that to the extent that any such representation or warranty in this clause (B) expressly relates to an earlier date, such representation or warranty is true and correct in all material respects at and as of such earlier date; (ii) the Transferor or Metris, as applicable, has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the Transferor's or Metris's knowledge, threatened by the Commission as of the Closing Date; and (iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus contains an 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. (c) Since the respective dates as of which information is given in the Prospectus, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the business or assets of the Trust, the Transferor, or Direct Merchants Bank or any material adverse change in the financial position or results of operations of the Trust, the Transferor, or Direct Merchants Bank otherwise than as set forth or contemplated in the Prospectus which in any such case makes it impracticable or inadvisable in the Representative's good faith judgment to proceed with the public offering or the delivery of the Offered Securities Certificates on the terms and in the manner contemplated in the Prospectus as amended or supplemented. (d) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any material adverse change in the financial markets for asset backed securities in the United States or any outbreak of hostilities or other calamity or crisis or (ii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by Federal or New York authorities, the effect of which with respect to clause (i) or (ii) is such as to make it, in the good faith judgment of the Representative, impracticable to market the Offered Securities Certificates or to enforce contracts for the sale of the Offered SecuritiesCertificates. (e) The Representative shall have received: (1) The favorable opinion of Xxxx X. Xxxxxxxx, general counsel of Xxxxxx, dated the Closing Date and addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Representative, to the effect that: (i) Metris is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. (ii) The Transferor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is duly qualified to transact business and is in good standing in each state in which the conduct of its business requires such qualification except where the failure to so qualify does not have a material adverse effect on the financial condition or business of the Transferor. (iii) Direct Merchants Bank is a national banking association formed under the laws of the United States of America and is authorized to conduct the business of a special purpose credit card bank, as described in the Prospectus, and had at all relevant times and now has the power, authority and legal right to acquire, own and service the Accounts and the Receivables; (iv) Each Designated Agreement to which Metris, Direct Merchants Bank or the Transferor is a party and this Agreement has been duly and validly authorized, executed and delivered by each of Metris, Direct Merchants Bank and the Transferor, as applicable. (v) The sale of the Investor Securities Certificates and the direction by the Transferor to the Trustee to execute, authenticate and deliver the Investor Securities Certificates have been duly authorized by the Transferor. The Investor Securities Certificates have been duly and validly authorized and executed by the Transferor. (vi) The execution and delivery of any Designated Agreement or of the Underwriting Agreement and the execution and delivery to the Trustee of the Investor SecuritiesCertificates, the performance of the transactions contemplated by thisthis Agreement or any Designated Agreement and the fulfillment of the terms thereof will not (i) violate any Requirement of Law applicable to Metris or the Transferor (assuming compliance with all applicable state securities and Blue Sky laws, as to which such counsel expresses no opinion), (ii) require any filing (except for filings under the UCC) or registration under any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to Metris or the Transferor, except for such filings or registrations as have already been made and are in full force and effect or (iii) violate, result in any breach of any of the material terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under any currently existing material indenture, contract, agreement, mortgage, deed of trust or other instrument which has been attached as an exhibit to the report on Form 10-K filed by Xxxxxx. (vii) There are no legal or governmental proceedings pending or, to such counsel's knowledge, threatened that are required to be disclosed in the Registration Statement, other than those disclosed therein. There are no proceedings or investigations pending or, to the best of such counsel's knowledge, threatened against Metris or the Transferor, before any Governmental Authority (i) asserting the invalidity of any Designated Agreement or of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated hereby, (iii) seeking any determination or ruling that would materially and adversely affect the performance by Metris or the Transferor of its obligations thereunder, (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability thereof or (v) seeking to affect adversely the tax attributes of the Trust or the Investor Certificates. (viii) No consent, approval, authorization or order of, or registration, filing (except for filings under the UCC) or declaration with, any court or governmental agency or body is required in connection with (i) the execution, delivery and performance by Metris or the Transferor of any Designated Agreement or of this Agreement or (ii) the offer, sale or delivery of the Investor Certificates, except such as shall have been obtained or made, as the case may be, or will be obtained or made, as the case may be, prior to the Closing Date and except such as may be required under state securities or Blue Sky laws. (ix) Metris has full corporate power and authority to sell and assign the Receivables to the Transferor pursuant to the terms of the Purchase Agreement and has duly authorized such sale and assignment by all necessary corporate action. The Transferor has full corporate power and authority to transfer the Receivables to the Trust pursuant to the terms of the Pooling and Servicing Agreement and has duly authorized such transfer by all necessary corporate action. (x) Direct Merchants Bank has the power and authority to execute and deliver the Bank Purchase Agreement and the Pooling and Servicing Agreement and to consummate the transactions contemplated therein; (xi) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation by Direct Merchants Bank of the transactions contemplated in the Bank Purchase Agreement or the Pooling and Servicing Agreement, except for such consents, approvals, orders or fillings as may be required under federal or state securities laws and except for such fillings as may be required to perfect interests in the Receivables pursuant to the Bank Purchase Agreement; (xii) Neither the execution, delivery and performance by Direct Merchants Bank of its obligations under the Bank Purchase Agreement or the Pooling and Servicing Agreement, the transfer of the Receivables to Metris, the issuance and sale of the Investor Certificates, nor the consummation of any other of the transactions contemplated in the Bank Purchase Agreement or the Pooling and Servicing Agreement will conflict with, result in a breach of or violation of any of the terms of, or constitute a default under, the Articles of Association or by-laws of the Bank, each as amended, or any rule, order, statute or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over Direct Merchants Bank or the terms of any material indenture or other material agreement or instrument known to such counsel to which Direct Merchants Bank is a party or by which it or its properties are bound; and (xiii) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge, threatened before any court, administrative agency or other tribunal (x) asserting the invalidity of the Bank Purchase Agreement or the Pooling and Servicing Agreement or (y) seeking to prevent the issuance of the Investor Certificates or the consummation of any of the transactions contemplated by the Bank Purchase Agreement or the Pooling and Servicing Agreement or the Investor Certificates, which might materially and adversely affect the performance by Direct Merchants Bank of its obligations under, or the validity or enforceability of, the Bank Purchase Agreement or the Pooling and Servicing Agreement or the Investor Certificates. (xiv) Metris is duly qualified to transact business and is in good standing in each state in which the conduct of its business requires such qualification except where the failure to so qualify does not have a material adverse effect on the financial condition or business of Metris. (xv) Each of Metris and the Transferor 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 Receivables or the Investor Certificates or the financial condition of Metris or the Transferor, and neither Metris nor the Transferor 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, operations or financial condition. (2) The favorable opinion of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Transferor and Xxxxxx, dated the Closing Date and addressed to the Underwriters and satisfactory in form and substance to the Representative and counsel to the Representative; to the effect that: (i) Each of the Designated Agreements (including, with respect to the Agreement, the allocation provisions thereof) to which any of Metris, the Transferor, the Bank and the Servicer (the "Companies") is a party, constitutes a valid and binding obligation of each of them, as applicable, enforceable against each of Metris, the Transferor and Direct Merchants Bank, as applicable, in accordance with their respective terms, except to the extent enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, receivership or other similar laws now or hereafter in effect relating to creditors' rights generally and, in the case of Direct Merchants Bank, creditors of national banking associations, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), and (c) the qualification that certain remedial provisions of the Designated Agreements may be unenforceable in whole or in

Conditions Precedent to the Obligations of the Underwriter. The obligation All obligations of the Underwriters Underwriter under this Agreement, and disbursement of the proceeds of this offering to purchase and pay for the Offered Securities Company are subject to the accuracy of the representations and warranties on the part of the Transferor and Metris, to the accuracy of the statements of officers of the Transferor and Xxxxxx made pursuant to the provisions hereof, to the performance by the Transferor of its obligations hereunder and to the following additional conditions precedent: (a) The Registration Statement shall have become effective not later than 4:00 p.m., New York on or prior to 12:00 Noon Minneapolis time, on the second Business Day following the date of this Agreement February 15, 1997, or such later date as shall have been consented to by the Representative; and Underwriter may agree to. On or prior to the Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings proceeding for that purpose shall have been instituted or, to initiated or threatened by the knowledge Commission or be pending; any request for additional information on the part of the Transferor or Metris, shall Commission (to be contemplated by included in the Commission. If the Transferor has elected to rely upon Rule 430A of the 1933 Act Regulations, the price of the Offered Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A or Prospectus or otherwise) shall have been transmitted complied with to the Commission for filing pursuant to Rule 424(b) satisfaction of the 1933 Act Regulations within Commission; and neither the prescribed time period, and prior to Registration Statement or the Closing Date the Company shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective Prospectus nor any amendment providing such information thereto shall have been promptly filed and declared effective to which counsel to the Underwriter shall have reasonably objected in accordance with the requirements of Rule 430A of the 1933 Act Regulationswriting or have not given their consent. (b) Each The Underwriter shall not have disclosed in writing to the Company that the Registration Statement or the Prospectus or any amendment thereof or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel to the Underwriter, is material, or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein, or is necessary to make the statements therein not misleading. (c) The Company's warranties and representations set forth herein shall be true as of the Transferor Closing Date and Xxxxxx the Company shall have delivered kept and observed all covenants required of it to such date. (d) The authorization of the Units, the Warrants, the Stock Purchase Option, and the Underlying Securities, the Registration Statement and the Prospectus, and all corporate proceedings and other legal matters incident thereto and to this Agreement shall be reasonably satisfactory in all respects to counsel to the Representative a certificateUnderwriter. The Underwriter shall have received an opinion dated as of the Closing Date from its counsel, substantially in the form of the opinion called for by Section (d), qualified in such manner as the Underwriter may deem acceptable. (e) The Company (which term shall include any subsidiaries of the Company) shall have furnished to the Underwriter the opinion, dated the Closing Date, signed by its presidentaddressed to the Underwriter, a senior vice president or a vice president from Xxxxxx & Xxxxxx, P.A., counsel to the Company, to the effect that the signer based upon a review by them of such certificate has carefully examined the Registration Statement, ; the Prospectus, each Designated Agreement and this Agreement the Company's Articles of incorporation, bylaws, and thatrelevant corporate proceedings; an examination of such statutes they deem necessary, and such other investigation by such counsel as they deem necessary to express such opinion: (i) (A) The Company has been duly incorporated and is a validly existing corporation in good standing under the representations laws of Minnesota, with full corporate power and warranties of authority to own and operate its properties and to carry on its business as set forth in the Transferor Registration Statement and Metris, as applicable, 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 representations and warranties of the Transferor, Metris and Direct Merchants Bank, as applicable, in each Designated Agreement are true and correct in all material respects at and as of the Closing Date with the same effect as if made on and as of the Closing Date except that to the extent that any such representation or warranty in this clause (B) expressly relates to an earlier date, such representation or warranty is true and correct in all material respects at and as of such earlier date;Prospectus. (ii) The Company is not required to qualify or register as a foreign corporation in any state, and there are no jurisdictions in which the Transferor Company's ownership of property or Metris, as applicable, has complied in all its conduct of business requires such qualification or registration and where the failure to so qualify would have a material respects with all the agreements and satisfied all the conditions adverse effect on its part to be performed or satisfied under this Agreement at or prior to the Closing Date;operations. (iii) The Company has authorized and outstanding capital capital stock as set forth in the Registration Statement and Prospectus; the capitalization of the Company, the Units, the Warrants, and the Stock Purchase Option conform to the statements concerning them in the Registration Statement and Prospectus; the outstanding capital stock of the Company has been duly and validly issued and is fully-paid and nonassessable and contain no stop preemptive or other stock purchase rights; the Shares have been, and the Shares and Warrant Shares issuable upon due exercise of the Warrants will be, when delivered against payment, duly and validly authorized and, upon issuance thereof and payment therefor in accordance with this Agreement and the Warrants, will be duly and validly issued, fully paid, and nonassessable, and will not be subject to the preemptive rights of any shareholder of the Company. (iv) The Stock Purchase Option has been duly and validly authorized and issued and is a valid and binding instrument enforceable against the Company in accordance with its terms, except as enforcement may be limited by bankruptcy or similar laws affecting creditors' rights general application affecting creditors' rights, except as the availability of equitable remedies requires the exercise of judicial discretion, and except as enforcement of the indemnification provisions therein may be limited by federal or state securities laws. (v) A sufficient number of shares of the Company's common stock have been duly reserved for issuance upon exercise of the Warrants, the Stock Purchase Option and the Underwriter's Warrants. The shares of Common Stock issuable on due exercise of the Stock Purchase Option and the Warrants included therein will be validly issued fully paid, and non-assessable. (vi) No consents, approvals, authorizations, or orders of agencies, officers, or other regulatory authorities are known to such counsel which are necessary for the valid authorization, issue, or sale of the Units and Warrant Shares hereunder, except as required under the Act or blue sky or state securities laws. (vii) The issuance and sale of the Units, the Shares, the Warrants, the Warrant Shares, the Stock Purchase Option and the Underwriter's Warrants Regulatory and the consummation of the transactions herein contemplated, and compliance with the terms of this Agreement and the transactions contemplated therein will not (with or without notice or lapse of time) conflict with or result in a breach of any of the terms, conditions, or provisions of or constitute a default or give another party a right to accelerate under the articles of incorporation or bylaws of the Company, or under any note, indenture, mortgage, deed of trust, or other agreement or instrument known to such counsel after reasonable investigation to which the Company is a party or by which the Company or any of its property is bound, or under any existing law (provided this paragraph shall not relate to federal or state securities laws), order, rule, regulation, writ, injunction, or decree known to such counsel of any government, governmental instrumentality, agency, body, arbitration tribunal, or court, domestic or foreign, having jurisdiction over the Company or its property. (viii) The Registration Statement has become effective under the Act and, to the best knowledge of such counsel after reasonable investigation, no order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the Transferor's instituted or Metris's knowledge, threatened are pending or contemplated by the Commission under the Act or by any authority acting under any state securities or blue-sky law; and the Registration Statement and Prospectus, and each amendment and supplement thereto, comply as to form in all material respects with the requirements of the Closing Date; and (iv) nothing has come to such person's attention that would lead such person to believe that Act and the Prospectus contains an 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 misleadingRegulations thereunder. (cix) Since the respective dates as of which information Such counsel is given familiar with all contracts referred to in the ProspectusRegistration Statement or Prospectus and such contracts are sufficiently summarized or disclosed therein or filed as exhibits thereto as required, there shall and such counsel, after a reasonable investigation, does not have occurred know of any material adverse changecontracts required to be summarized or disclosed or filed, and such counsel, after a reasonable investigation, does not know of any legal or any development involving governmental proceedings pending or threatened to which the Company is the subject of such a prospective material adverse change, in or affecting the business or assets of the Trust, the Transferor, or Direct Merchants Bank or any material adverse change character required to be disclosed in the financial position Registration Statement or results of operations of the Trust, the Transferor, or Direct Merchants Bank otherwise than as set forth or contemplated in the Prospectus which in any such case makes it impracticable or inadvisable in the Representative's good faith judgment to proceed with the public offering or the delivery of the Offered Securities on the terms are not disclosed and in the manner contemplated in the Prospectus as amended or supplementedproperly described therein. (dx) Subsequent to the execution and delivery of this This Agreement, there shall not have occurred (i) any material adverse change in the financial markets for asset backed securities in the United States or any outbreak of hostilities or other calamity or crisis or (ii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by Federal or New York authoritiesWarrant Agreement, the effect of which with respect to clause (i) or (ii) is such as to make it, in the good faith judgment of the Representative, impracticable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities. (e) The Representative shall have received: (1) The favorable opinion of Xxxx X. Xxxxxxxx, general counsel of Xxxxxx, dated the Closing Date and addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Representative, to the effect that: (i) Metris is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. (ii) The Transferor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is duly qualified to transact business and is in good standing in each state in which the conduct of its business requires such qualification except where the failure to so qualify does not have a material adverse effect on the financial condition or business of the Transferor. (iii) Direct Merchants Bank is a national banking association formed under the laws of the United States of America and is authorized to conduct the business of a special purpose credit card bank, as described in the ProspectusImpoundment Agreement, and had at all relevant times and now has the power, authority and legal right to acquire, own and service the Accounts and the Receivables; (iv) Each Designated Agreement to which Metris, Direct Merchants Bank or the Transferor is a party and this Agreement has been duly and validly authorized, executed and delivered by each of Metris, Direct Merchants Bank and the Transferor, as applicable. (v) The sale of the Investor Securities and the direction by the Transferor to the Trustee to execute, authenticate and deliver the Investor Securities Stock Purchase Option have been duly authorized by the Transferor. The Investor Securities have been duly and validly authorized and executed by the Transferor. (vi) The execution Company and delivery of any Designated Agreement or are valid and binding agreements of the Underwriting Agreement Company and are enforceable against the execution Company in accordance with their terms,; except as enforcement may be limited by bankruptcy or similar laws affecting creditors' rights except as the availability of equitable remedies requires the exercise of judicial discretion, and delivery to the Trustee except as enforcement of the Investor Securities, the performance of the transactions contemplated indemnification provisions therein may be limited by thisfederal or state securities laws.