Representations and Warranties of the Transferor. The Transferor represents and warrants to you as of the date hereof and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreement, as follows: (a) a registration statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (b) as of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein; (c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (d) the Transferor is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement; (e) the Note Trust is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement; (f) the Notes of the related Series, on the date of such Terms Agreement, will have been duly and validly authorized and, when such Notes are duly and validly executed by or on behalf of the Note Trust, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture and the applicable Indenture Supplement and delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture and the applicable Indenture Supplement; (g) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument to which the Transferor is a party or by which it is bound or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument; (h) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will constitute a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity; (i) all approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Date; (j) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor; (k) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus Supplement; (l) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes of the related Series shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Date to the extent then due; and (m) the Notes of the related Series, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement conform in all material respects to the description thereof in the Prospectus.
Appears in 3 contracts
Samples: Underwriting Agreement (Fnanb Credit Card Master Trust), Underwriting Agreement (Fnanb Credit Card Master Trust), Underwriting Agreement (Dc Funding International Inc)
Representations and Warranties of the Transferor. (a) The Transferor represents and warrants to you to, and agrees with, each Underwriter as of the date hereof and to the Underwriters named set forth in this Section 1(a). Certain terms used in this Section 1(a) are defined in the applicable Terms Agreement as second paragraph of the date of such Terms Agreement, as follows:subsection 1(a)(i) below.
(ai) a registration statement on The Transferor meets the requirements for use of Form S-3 (having the registration number stated in the applicable Terms Agreement), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), and has been filed with the Securities and Exchange Commission (the "Commission") a registration statement (which Registration No. 333-24023), including a related preliminary prospectus, on such Form S-3 for the registration under the Act of the Certificates. The Transferor may have included filed one or more amendments thereto, including the related preliminary prospectuses and prospectus supplements prospectus, each of which has previously been furnished to you. The Transferor will next file with the Commission (eachA) prior to the effectiveness of such registration statement, a "Preliminary Prospectus"further amendment thereto (including the form of final prospectus), (B) meeting after effectiveness of such registration statement, a final prospectus in accordance with Rules 430A and 424(b) or (C) after effectiveness of such registration statement, a final prospectus relating to the requirements of Rule 430 of Certificates in accordance with Rules 415 and 424(b) under the Act. In the case of clause (B), and the Transferor has included in such registration statement, as amendedamended at the Effective Date, has become effective; such registration statement, as amended, all information (other than Rule 430A Information) required by the Act and the prospectus relating rules thereunder to be included in the sale of the Notes offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only prospectuses with respect to the offering of the Notes to which it relates; Certificates and the conditions offering thereof. As filed, such amendment and form of final prospectus, or such final prospectus, shall include all Rule 430A Information and, except to the use of extent the Underwriters shall agree in writing to a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writingmodification, shall be in all substantive respects in the form furnished to you prior to such date the Execution Time or, to the extent not completed on such dateat the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that which has previously been furnished to you) as the Transferor has advised you, prior to such time the Execution Time, will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(e) the Note Trust is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, on the date of such Terms Agreement, will have been duly and validly authorized and, when such Notes are duly and validly executed by or on behalf of the Note Trust, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture and the applicable Indenture Supplement and delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture and the applicable Indenture Supplement;
(g) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument to which the Transferor is a party or by which it is bound or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument;
(h) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will constitute a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity;
(i) all approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Date;
(j) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(k) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus Supplement;
(l) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes of the related Series shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Date to the extent then due; and
(m) the Notes of the related Series, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement conform in all material respects to the description thereof in the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (First National Bank of Commerce), Underwriting Agreement (First National Bank of Commerce)
Representations and Warranties of the Transferor. The Transferor ------------------------------------------------ represents and warrants to you as of the date hereof and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreement, as follows:
(a) a registration statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes Certificates and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes Certificates offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that -------- ------- a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes Certificates to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to -------- ------- information contained in or omitted from either of the documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders Certificateholders under the Master Indenture Pooling and Servicing Agreement or under any Indenture Supplement;
(e) the Note Trust is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes Certificates of the related Series, on the date of such Terms Agreement, will have been duly and validly authorized and, when such Notes Certificates are duly and validly executed by or on behalf of the Note TrustTransferor, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture Pooling and Servicing Agreement and the applicable Indenture Supplement and delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture Pooling and Servicing Agreement and the applicable Indenture Supplement;
(gf) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement each applicable Supplement and the Receivables Purchase Agreement, dated as Certificates of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement")a Series, and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument to which the Transferor is a party or by which it is bound or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument;
(hg) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement applicable Supplement and any applicable Enhancement Agreement will each constitute a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity;
(ih) all approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes Certificates of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture Pooling and Servicing Agreement and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Date;
(ji) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(kj) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus Supplement;
(lk) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series applicable Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes Certificates of the related Series shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Date to the extent then due; and
(ml) the Notes Certificates of the related Series, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement applicable Supplement and any applicable Enhancement Agreement conform in all material respects to the description thereof in the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Circuit City Credit Card Master Trust), Underwriting Agreement (Circuit City Credit Card Master Trust)
Representations and Warranties of the Transferor. The Transferor represents and warrants to you as of the date hereof and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreement, as follows:
(a) a registration statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes Certificates and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes Certificates offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes Certificates to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders Certificateholders under the Master Indenture Pooling and Servicing Agreement or under any Indenture Supplement;
(e) the Note Trust is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes Certificates of the related Series, on the date of such Terms Agreement, will have been duly and validly authorized and, when such Notes Certificates are duly and validly executed by or on behalf of the Note TrustTransferor, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture Pooling and Servicing Agreement and the applicable Indenture Supplement and delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture Pooling and Servicing Agreement and the applicable Indenture Supplement;
(gf) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement each applicable Supplement and the Receivables Purchase Agreement, dated as Certificates of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement")a Series, and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument to which the Transferor is a party or by which it is bound or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument;
(hg) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement applicable Supplement and any applicable Enhancement Agreement will each constitute a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity;
(ih) all approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes Certificates of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture Pooling and Servicing Agreement and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Date;
(ji) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(kj) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus Supplement;
(lk) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series applicable Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes Certificates of the related Series shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Date to the extent then due; and
(ml) the Notes Certificates of the related Series, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement applicable Supplement and any applicable Enhancement Agreement conform in all material respects to the description thereof in the Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Circuit City Credit Card Master Trust), Underwriting Agreement (Circuit City Credit Card Master Trust)
Representations and Warranties of the Transferor. The Transferor represents and warrants to you as of the date hereof and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreement, as followseach Underwriter that:
(a) a registration statement on Form S-3 (having no order preventing or suspending the registration number stated in use of any preliminary prospectus has been issued by the applicable Terms Agreement)Commission, including a and each preliminary prospectus and such amendments thereto filed as may have been required part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to the date hereof, relating to the Notes and the offering thereof from time to time in accordance with Rule 415 424 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied when so filed in all material respects with the applicable requirements of the Act and the Rules and RegulationsSecurities Act, and did not include any contain an untrue statement of a material fact or, in the case of the Registration Statement, or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading andtherein, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Transferor in writing by such Underwriter through the Representative expressly for use therein;
(b) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Transferor, threatened by the Commission; and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof), the Registration Statement and Prospectus (as amended or supplemented if the Prospectus Transferor shall have furnished any amendments or supplements thereto) comply, or will comply comply, as the case may be, in all material respects with the applicable requirements Securities Act and do not and will not, as of the Act applicable effective date as to the Registration Statement and any amendment thereto and as of the Rules date of the Prospectus and Regulationsany amendment or supplement thereto, and neither of such documents included or will include contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, if applicable, at the Closing Date will not contain any untrue statement of a material fact or omit 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, however, except that the foregoing does representations and warranties shall not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance upon and in conformity with information contained in or omitted from either of the documents based upon written information relating to any Underwriter furnished to the Transferor in writing by any such Underwriter specifically through the Representative expressly for use therein;
(c) since the respective dates as of which information is given in connection with the preparation of the Registration Statement and the Prospectus, there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, prospects, management, financial position, stockholders' equity or results of operations of the Transferor as a whole, otherwise than as set forth or contemplated in the Prospectus;
(d) the Transferor has been duly organized, is a corporation duly organized and validly existing as a national banking association in good standing under the laws of the State of Delaware, with full power, United States and has the power and authority (corporate and legal right other) to own its properties and conduct its business as described in the Prospectus, is and has been duly qualified to do as a foreign corporation for the transaction of business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to under the state securities or Blue Sky laws of various jurisdictions) in 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 qualify qualified or obtain such licenses and approvals in good standing would not have a material adverse effect on the interests of Noteholders under transactions contemplated herein or in the Master Indenture or under any Indenture SupplementBasic Documents;
(e) this Agreement has been duly authorized, executed and delivered by the Note Trust is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture SupplementTransferor;
(f) the Notes of the related Series, on the date of such Terms Agreement, will Certificates have been duly and validly authorized and, when such Notes Certificates are duly and validly executed by or on behalf of the Note Trust, and authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture Pooling and the applicable Indenture Supplement Servicing Agreement and delivered and paid for as provided hereinpursuant to this Agreement, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture Pooling and Servicing Agreement; each of the Basic Documents has been duly authorized by the Transferor and, when executed and delivered by the Transferor and the other parties thereto, each of the Basic Documents will constitute a legal, valid and binding obligation of the Transferor enforceable against the Transferor in accordance with its terms, subject as to enforceability to applicable Indenture Supplementbankruptcy, insolvency, reorganization, conservatorship, receivership, liquidation or other similar laws affecting the enforcement of creditors rights generally and to general equitable principles; and the Certificates and the Basic Documents each will conform to the descriptions thereof in the Prospectus;
(g) the executionTransferor is not, delivery and performance by nor with the giving of notice or lapse of time or both would be, in violation of or in default under, its articles of association or bylaws or any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Transferor is a party or by which it or any of this Agreementits properties is bound, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), except for violations and defaults which individually and in the Pooling aggregate would not have a material adverse effect on the transactions contemplated herein or in the Basic Documents; the issue and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), and the consummation by the Transferor sale of the transactions provided for herein Certificates and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of all of the provisions of its obligations under the Securities Act, the Basic Documents and this Agreement and the consummation of the transactions herein or and therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, contemplated will (i) not conflict with or result in a breach of any of the terms and or provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract deed of trust, loan agreement or other agreement or instrument to which the Transferor is a party or by which it the Transferor is bound or (iv) to which any of the property or assets of the Transferor is subject, nor will any such action result in any violation of the creation provisions of the articles of association or imposition bylaws of the Transferor or any applicable law or statute or any order, rule or regulation of any liencourt or governmental agency or body having jurisdiction over the Transferor, charge or encumbrance upon any of its property pursuant to properties; and no consent, approval, authorization, order, license, registration or qualification of or with any such court or governmental agency or body is required for the terms issue and sale of the Certificates or the consummation by the Transferor of the transactions contemplated by this Agreement or the Basic Documents, except such consents, approvals, authorizations, orders, licenses, registrations 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 Underwriters and the filing of any such indenturefinancing statements required to perfect the Trust's interest in the Receivables and the Transferor has full power and authority to sell, mortgageand establish the Trust that will issue, contract or other instrumentthe Certificates as contemplated by this Agreement and to enter into this Agreement, the Loan Agreement, the Pooling and Servicing Agreement and the Supplement;
(h) when executed and delivered by other than as set forth or contemplated in the parties theretoProspectus, there are no legal or governmental investigations, actions, suits or proceedings pending, or to the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will constitute a legal, valid and binding agreement knowledge of the Transferor, enforceable threatened against or affecting the Transferor or its properties, or to which the Transferor is or may be a party or to which the Transferor or any property of the Transferor is or may be the subject, (i) asserting the invalidity of this Agreement or of any of the Basic Documents, (ii) 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, (iii) that may adversely affect the federal or state income, excise, franchise or similar tax attributes of the Certificates, (iv) that could materially and adversely affect the Transferor's performance of its obligations under, or the validity or enforceability of, this Agreement or any of the Basic Documents, (v) could individually or in accordance the aggregate reasonably be expected to have a material adverse effect on the general affairs, business, prospects, management, financial position, stockholder's equity or results of operations of the Transferor or (vi) which could individually or in the aggregate reasonably be expected to have a material adverse effect on the interests of the holders of the Certificates or the marketability of the Certificates; and there are no statutes, regulations, contracts or other documents that are required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required;
(i) the computer tape with its termsrespect to the Receivables to be sold to the Trust created as of the Cut-Off Date and made available to the Underwriters by the Transferor was complete and accurate in all material respects as of the date thereof; the Transferor has good and marketable title to the Receivables free and clear of all liens, encumbrances and defects, except such as are described or referred to in to Prospectus, and by assignment and delivery of each of the Receivables to the extent that Trust as of the enforceability thereof may be Closing Date, the Transferor will transfer title in the Receivables to the Trust, subject to bankruptcyno prior lien, insolvencymortgage, reorganizationsecurity interest, receivershippledge, conservatorshipadverse claim, moratorium charge or other similar laws now or hereafter in effect relating to creditors' rights in general as such laws would apply encumbrance;
(j) the representations and warranties of the Transferor contained in the event of the insolvency, liquidation or reorganization or other similar occurrence Basic Documents are true and correct in all material respects;
(k) Ernst & Young LLP are independent public accountants with respect to the Transferor or in within the event meaning of any moratorium or similar occurrence affecting the Transferor and to general principles of equitySecurities Act;
(il) the Transferor owns, possesses or has obtained all approvalslicenses, authorizationspermits, certificates, consents, orders 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 the Receivables and to perform its obligations under this Agreement and the Basic Documents, and the Transferor has not received any actual notice of any proceeding relating to revocation or modification of any such license, permit, certificate, consent, order, approval or other actions authorization; and the Transferor is in compliance with all laws and regulations necessary for the performance of any personits obligations under this Agreement and the Basic Documents; and
(m) the Transferor has delivered to you complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Transferor for the three most recent years for which such reports are available, corporation or other organization, or of any court, governmental agency or body or official (except with respect as submitted to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale Comptroller of the Notes of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Date;
(j) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(k) Currency; except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus Supplement;
(l) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes of the related Series shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Date to the extent then due; and
(m) the Notes of the related Series, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement conform in all material respects to the description thereof in the Prospectuslast such report.
Appears in 1 contract
Samples: Underwriting Agreement (First Bank Corporate Card Master Trust)
Representations and Warranties of the Transferor. The Transferor represents and warrants to you as of the date hereof and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreement, as followseach Underwriter that:
(a) a registration statement on Form S-3 (having no order preventing or suspending the registration number stated in use of any preliminary prospectus has been issued by the applicable Terms Agreement)Commission, including a and each preliminary prospectus and such amendments thereto filed as may have been required part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to the date hereof, relating to the Notes and the offering thereof from time to time in accordance with Rule 415 424 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied when so filed in all material respects with the applicable requirements of the Act and the Rules and RegulationsSecurities Act, and did not include any contain an untrue statement of a material fact or, in the case of the Registration Statement, or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading andtherein, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Transferor in writing by such Underwriter through the Representative expressly for use therein;
(b) the Registration Statement has been declared effective by the Commission under the Securities Act or if a post-effective amendment is required to be filed under the Securities Act, such post-effective amendment has been declared effective by the Commission under the Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and on no proceeding for that purpose has been instituted or, to the date knowledge of each Terms Agreement the Transferor, threatened by the Commission; and on each Delivery Date (as defined in Section 3 hereof), the Registration Statement and Prospectus (as amended or supplemented if the Prospectus Transferor shall have furnished any amendments or supplements thereto) comply, or will comply comply, as the case may be, in all material respects with the applicable requirements Securities Act and do not and will not, as of the Act applicable effective date as to the Registration Statement and any amendment thereto and as of the Rules date of the Prospectus and Regulationsany amendment or supplement thereto, and neither of such documents included or will include contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus, as amended or supplemented, if applicable, at the Closing Date will not contain any untrue statement of a material fact or omit 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, however, except that the foregoing does representations and warranties shall not apply to statements or omissions in the Registration Statement or the Prospectus made in reliance upon and in conformity with information contained in or omitted from either of the documents based upon written information relating to any Underwriter furnished to the Transferor in writing by any such Underwriter specifically through the Representative expressly for use therein;
(c) since the respective dates as of which information is given in connection with the preparation of the Registration Statement and the Prospectus, there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, business, prospects, management, financial position, stockholders' equity or results of operations of the Transferor as a whole, otherwise than as set forth or contemplated in the Prospectus;
(d) the documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and none of such documents 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; and any further documents so filed and incorporated by reference in the Prospectus, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act, and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(e) the Transferor has been duly organized, is a corporation duly organized and validly existing as a national banking association in good standing under the laws of the State of Delaware, with full power, United States and has the power and authority (corporate and legal right other) to own its properties and conduct its business as described in the Prospectus, is and has been duly qualified to do as a foreign corporation for the transaction of business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to under the state securities or Blue Sky laws of various jurisdictions) in 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 qualify qualified or obtain such licenses and approvals in good standing would not have a material adverse effect on the interests of Noteholders under the Master Indenture transactions contemplated herein or under any Indenture Supplement;
(e) the Note Trust is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture SupplementBasic Documents;
(f) this Agreement has been duly authorized, executed and delivered by the Notes of Transferor;
(g) the related Series, on the date of such Terms Agreement, will Certificates have been duly and validly authorized and, when such Notes Certificates are duly and validly executed by or on behalf of the Note Trust, and authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture Pooling and the applicable Indenture Supplement Servicing Agreement and delivered and paid for as provided hereinpursuant to this Agreement, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture and the applicable Indenture Supplement;
(g) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), and the consummation by the Transferor ; each of the transactions provided for herein and therein, have been, or will have been, Basic Documents has been duly authorized by the Transferor by all necessary action on the part of the Transferor; and, when executed and neither the execution and delivery delivered by the Transferor and the other parties thereto, each of such instrumentsthe Basic Documents will constitute a legal, valid and binding obligation of the Transferor enforceable against the Transferor in accordance with its terms, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, conservatorship, receivership, liquidation or other similar laws affecting the enforcement of creditors rights generally and to general equitable principles; and the Certificates and the Basic Documents each will conform to the descriptions thereof in the Prospectus;
(h) the Transferor is not, nor with the giving of notice or lapse of time or both would be, in violation of or in default under, its articles of association or bylaws or any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Transferor is a party or by which it or any of its properties is bound, except for violations and defaults which individually and in the aggregate would not have a material adverse effect on the transactions contemplated herein or in the Basic Documents; the issue and sale of the Certificates and the performance by the Transferor of all of the provisions of its obligations under the Securities Act, the Basic Documents and this Agreement and the consummation of the transactions herein or and therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, contemplated will (i) not conflict with or result in a breach of any of the terms and or provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract deed of trust, loan agreement or other agreement or instrument to which the Transferor is a party or by which it the Transferor is bound or (iv) to which any of the property or assets of the Transferor is subject, nor will any such action result in any violation of the creation provisions of the articles of association or imposition bylaws of the Transferor or any applicable law or statute or any order, rule or regulation of any liencourt or governmental agency or body having jurisdiction over the Transferor, charge or encumbrance upon any of its property pursuant to properties; and no consent, approval, authorization, order, license, registration or qualification of or with any such court or governmental agency or body is required for the terms issue and sale of the Certificates or the consummation by the Transferor of the transactions contemplated by this Agreement or the Basic Documents, except such consents, approvals, authorizations, orders, licenses, registrations 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 Underwriters and the filing of any such indenturefinancing statements required to perfect the Trust's interest in the Receivables and the Transferor has full power and authority to sell, mortgageand establish the Trust that will issue, contract or other instrument;
(h) when executed the Certificates as contemplated by this Agreement and delivered by to enter into this Agreement, the parties theretoLoan Agreement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will constitute a legalthe Supplement;
(i) other than as set forth or contemplated in the Prospectus, valid and binding agreement there are no legal or governmental investigations, actions, suits or proceedings pending, or to the knowledge of the Transferor, enforceable threatened against or affecting the Transferor or its properties, or to which the Transferor is or may be a party or to which the Transferor or any property of the Transferor is or may be the subject, (i) asserting the invalidity of this Agreement or of any of the Basic Documents, (ii) 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, (iii) that may adversely affect the federal or state income, excise, franchise or similar tax attributes of the Certificates, (iv) that could materially and adversely affect the Transferor's performance of its obligations under, or the validity or enforceability of, this Agreement or any of the Basic Documents, (v) could individually or in accordance the aggregate reasonably be expected to have a material adverse effect on the general affairs, business, prospects, management, financial position, stockholder's equity or results of operations of the Transferor or (vi) which could individually or in the aggregate reasonably be expected to have a material adverse effect on the interests of the holders of the Certificates or the marketability of the Certificates; and there are no statutes, regulations, contracts or other documents that are required to be filed as an exhibit to the Registration Statement or required to be described in or incorporated by reference into the Registration Statement or the Prospectus which are not filed, described or incorporated by reference as required;
(j) the computer tape with its termsrespect to the Receivables to be sold to the Trust created as of the Cutoff Date and made available to the Underwriters by the Transferor was complete and accurate in all material respects as of the date hereof; the Transferor has good and marketable title to the Receivables free and clear of all liens, encumbrances and defects, except such as are described or referred to in to Prospectus, and by assignment and delivery of each of the Receivables to the extent that Trust as of the enforceability thereof may be Closing Date, the Transferor will transfer title in the Receivables to the Trust, subject to bankruptcyno prior lien, insolvencymortgage, reorganizationsecurity interest, receivershippledge, conservatorshipadverse claim, moratorium change or other similar laws now or hereafter in effect relating to creditors' rights in general as such laws would apply encumbrance;
(k) the representations and warranties of the Transferor contained in the event of the insolvency, liquidation or reorganization or other similar occurrence Basic Documents are true and correct in all material respects;
(l) Ernst & Young LLP are independent public accountants with respect to the Transferor or in within the event meaning of any moratorium or similar occurrence affecting the Transferor and to general principles of equitySecurities Act;
(im) the Transferor owns, possesses or has obtained all approvalslicenses, authorizationspermits, certificates, consents, orders 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 the Receivables and to perform its obligations under this Agreement and the Basic Documents, and the Transferor has not received any actual notice of any proceeding relating to revocation or modification of any such license, permit, certificate, consent, order, approval or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture ; and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to Transferor is in compliance with all laws and regulations necessary for the applicable Delivery Dateperformance of its obligations under this Agreement and the Basic Documents;
(jn) this Agreement the Transferor has been anddelivered to you complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Transferor for the three most recent years for which such reports are available, as submitted to the Comptroller of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(k) Currency; except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus Supplementlast such report;
(l) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes of the related Series shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Date to the extent then due; and
(m) the Notes of the related Series, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement conform in all material respects to the description thereof in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (First Bank Corporate Card Master Trust)
Representations and Warranties of the Transferor. The Transferor represents and warrants to you as of to, and agrees with, the date hereof and to the several Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreement, as follows:
that: (a) a A registration statement on Form S-3 (having the registration number stated in the applicable Terms AgreementNo. 33-99442), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes Certificates and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes Certificates offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including the base prospectus and any prospectus supplement filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relatesCertificates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to on Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
; (b) as of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on On the effective date of the Registration Statement, the Registration Statement and the Prospectus complied conformed in all material respects with to the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof)this Agreement, the Registration Statement and the Prospectus will comply conform in all material respects with to the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained statements in or omitted omissions from either of the documents Registration Statement or the Prospectus based upon written information furnished to the Transferor by any Underwriter the Underwriters specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(e) the Note Trust is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, on the date of such Terms Agreement, will have been duly and validly authorized and, when such Notes are duly and validly executed by or on behalf of the Note Trust, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture and the applicable Indenture Supplement and delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture and the applicable Indenture Supplement;
(g) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; it being understood and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument to which the Transferor is a party or by which it is bound or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument;
(h) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will constitute a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent agreed that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights in general only such information is that described as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity;
(i) all approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictionsSection 7(b), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Date;
(j) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(k) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus Supplement;
(l) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes of the related Series shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Date to the extent then due; and
(m) the Notes of the related Series, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement conform in all material respects to the description thereof in the Prospectus.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to you the Servicer, the Indenture Trustee, the Noteholders and the Issuer Trust that as of the date hereof and to the Underwriters named in the applicable Terms Agreement Closing Date (except as of the date of such Terms Agreement, as follows:otherwise specifically provided herein):
(a) a registration statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the The Transferor is a corporation limited liability company duly organized organized, validly existing, and validly existing in good standing under the laws of the State of DelawareColorado, with full power, power and authority and legal right to own its properties assets and to conduct its business as described such assets are currently owned and such business is presently conducted and has all licenses necessary to carry on its business as now being conducted, and has, and had at all relevant times, full corporate power to execute and deliver each of the Initial Revenue Agreements, the Pledged Contracts, the Construction Phase Agreement and the Security Documents to which it is a party; the Transferor has the power and authority to execute and deliver this Agreement and to perform in accordance herewith; the Prospectusexecution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Transferor and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action of the Transferor; this Agreement evidences the valid, binding and enforceable obligation of the Transferor; and all requisite action has been taken by the Transferor to make this Agreement valid, binding and enforceable upon the Transferor in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or the application of equitable principles in any proceeding, whether at law or in equity;
(b) The Transferor is duly qualified to do business and is in good standing (or is exempt from such requirements)standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of its assets or the conduct of its business shall require such qualifications;
(except c) The consummation of the transactions contemplated by this Agreement will not result in (i) the breach of any terms or provisions of the articles of organization or operating agreement of the Transferor, (ii) the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other material instrument to which the Transferor or its assets is subject, or (iii) the violation of any law, rule, regulation, order, judgment or decree to which the Transferor or its assets is subject;
(d) The Transferor is not in default with respect to the state securities any order or Blue Sky laws decree of various jurisdictions) in each jurisdiction in any court or any order, regulation or demand of any federal, state, municipal or other governmental agency, which failure default might reasonably be expected to so qualify or obtain such licenses and approvals would have a material materially adverse effect on the interests condition (financial or otherwise) or operations of Noteholders under the Master Indenture Transferor or under any Indenture Supplementits assets or that would reasonably be expected to have a materially adverse effect on its performance hereunder;
(e) Each of the Note Trust Initial Revenue Agreements, the Pledged Contracts and the Security Documents to which it is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and party has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, on the date of such Terms Agreement, will have been duly and validly authorized andauthorized, when such Notes are duly executed and validly executed by or on behalf of the Note Trust, authenticated delivered by the Indenture Trustee Transferor and delivered in accordance with the Master Indenture and the applicable Indenture Supplement and delivered and paid for as provided herein, will be constitutes a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture and the applicable Indenture Supplement;
(g) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument to which the Transferor is a party or by which it is bound or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument;
(h) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will constitute a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except terms subject as to the extent that the enforceability thereof may be subject to applicable bankruptcy, insolvency, reorganization, receivership, conservatorshipinsolvency, moratorium or other similar laws now or hereafter in effect relating to affecting creditors' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor generally and to general principles of equityequity (regardless of whether enforcement is sought in a proceeding in equity or at law);
(if) all approvals, authorizations, consents, orders There are no actions or other actions of any person, corporation or other organizationproceedings against, or investigations of, the Transferor currently pending with regard to which the Transferor has received service of process and no action or proceeding against, or investigation of, the Transferor is, to the knowledge of the Transferor, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely, would prohibit its entering into this Agreement or render the Notes invalid, (B) seek to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or (C) if determined adversely, would prohibit or materially and adversely affect (i) the ability of the Transferor to perform its obligations hereunder and under the Initial Revenue Agreements, the Pledged Contracts, and the Security Documents to which it is a party, (ii) the sale of the Trust Assets to the Issuer Trust or (iii) the performance by the Transferor of its obligations under, or the validity or enforceability of, this Agreement or the Notes;
(g) No consent, approval, authorization or order of any court or governmental agency or body or official (except with respect body, other than the City pursuant to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series pursuant to this Arena Agreement, the applicable Terms Agreement, the Indenture and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Date;
is required for: (j1) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(k) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus Supplement;
(l) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of of, or compliance by the Transferor with, this Agreement, the applicable Terms AgreementInitial Revenue Agreements, the IndenturePledged Contracts and the Security Documents to which it is a party, (2) the applicable Indenture Supplementissuance of the Notes, and (3) the Pooling and Servicing Agreement, sale of the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Trust Assets under this Agreement and the Notes consummation of the related Series transactions required of it by this Agreement, except such as shall have been paid obtained on or before the Closing Date;
(h) No Officer's Certificate, statement, report or other document prepared by the Transferor and furnished or to be furnished by it pursuant to this Agreement or the other Basic Documents contains any untrue statement of material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading; and the information pertaining to each Revenue Agreement set forth on Exhibit A hereto is true and accurate in all --------- material respects;
(i) The Transferor is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations hereunder; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations hereunder; and no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Transferor prior to the date hereof;
(j) The Transferor has transferred the Trust Assets without any intent to hinder, delay or defraud any of its creditors;
(k) The Transferor is the lawful owner of the Trust Assets with the full right to transfer the Trust Assets free from any and all claims and encumbrances whatsoever, except for the City's subordinate Lien under the Arena Agreement as described in the City Intercreditor Agreements, and the Trust Assets, upon the transfer thereof to the Issuer Trust as contemplated herein, will be paid by or on behalf free and clear of all liens, claims and encumbrances, except for the City's subordinate Lien under the Arena Agreement as described in the City Intercreditor Agreements; this Agreement constitutes a valid sale, transfer, assignment, and conveyance to the Issuer Trust of all right, title, and interest of the Transferor in, to, and under all the Trust Assets now existing and hereafter created, and any related agreements under which the Trust Assets arose or will arise, all moneys due or to become due with respect thereto and all proceeds (as defined in the UCC as in effect in New York and all of the states where the Transferor's chief executive office or books and records relating to the Trust Assets are located) of such Trust Assets and any property relating thereto, and such property will be held by the Issuer Trust free and clear of any Lien of any Person claiming through or under the Transferor, except for the City's subordinate Lien under the Arena Agreement as described in the City Intercreditor Agreements;
(l) All filings and recordings required to perfect the title of the Issuer Trust to the Trust Assets purchased hereunder have been accomplished and are in full force and effect, and the Transferor shall at its expense perform all acts and execute all documents requested by the Issuer Trust, the Servicer or the Indenture Trustee at any time to evidence, perfect, maintain, and enforce the title of the Issuer Trust in such Trust Assets and the security interest of the Issuer Trust in the Excess Collateral and the security interest and priority of the Indenture Trustee in the Collateral, including filing of continuation statements as required by applicable state law; the Transferor will, at the reasonable request of the Issuer Trust, the Servicer, or the Indenture Trustee, execute and file additional financing statements reasonably satisfactory in form and substance to the Servicer, the Issuer Trust or the Indenture Trustee, as the case may be;
(m) Each Initial Revenue Agreement and Pledged Contract (i) contains all of the understandings and agreements between the Transferor and the related Obligor with respect to the subject matter thereof, (ii) is in existence and in full force and effect as of the Closing Date, and (iii) has not been modified or amended, and the provisions have not been waived at any time since the effective date of such Initial Revenue Agreement and Pledged Contract;
(n) No default exists under the terms of any of the Initial Revenue Agreements, and all Required Payments due on or prior to the applicable Delivery Closing Date have been made in full by the related Revenue Contractor;
(o) There are no offsets, counterclaims or other defenses available to the Revenue Contractor under any Initial Revenue Agreement against the Transferor;
(p) Except as otherwise expressly disclosed in a letter addressed to the Issuer Trust (i) the Property has been evaluated by environmental investigations and studies as disclosed in the VCUP; (ii) Hazardous Materials at the Property are being addressed pursuant to the VCUP; (iii) the VCUP was reviewed and approved by the CDPHE pursuant to Colorado's Voluntary Cleanup & Redevelopment Act; and (iv) EPA reviewed an earlier version of the VCUP which did not include certain additional source removal work, concurred with the cleanup and monitoring proposals set forth therein, and concluded that under the circumstances, EPA intervention under CERCLA and the federal Clean Water Act was not warranted.
(q) The New Arena Facility is covered by customary hazard insurance policies, special hazard insurance policies, general and specific liability insurance policies and such other insurance policies as are customary and usual in the sports arena industry and for the jurisdiction in which the New Arena Facility is located; all Insurance Policies relating to the New Arena Facility have been issued by an insurer rated at least "A6" by A.M. Best, and such Insurance Policies are in full force and effect, have been issued in amounts which are customary and usual in the sports arena industry and for the jurisdiction in which the New Arena Facility is located, and name the Issuer Trust and the Indenture Trustee as loss payees thereunder to the extent then due; andof the Outstanding Amount of the Notes;
(mr) Any and all requirements of any federal, state or local law applicable to the Notes Initial Revenue Agreements and Pledged Contracts and the use, operation, maintenance and construction of the related Series, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement conform New Arena Facility have been complied with in all material respects to the description thereof extent now required; and
(s) Upon the execution and delivery of this Agreement by the parties hereto, the Issuer Trust, or its designees, will have the sole and exclusive right and authority to enter into any Subsequent Revenue Agreement, subject to the City Intercreditor Agreements. It is understood and agreed that the representations and warranties set forth in this Section 3.01 shall survive delivery of the Indenture Trustee's ------------ Contract Files to the Custodian (as the agent of the Indenture Trustee), the conveyance of the Trust Assets to the Issuer Trust, the grant of a security interest in the Prospectus.Trust Assets to the Indenture Trustee and the issuance of the Notes, and shall inure to the benefit of the Noteholders, the Servicer, the Indenture Trustee, the Owner Trustee and the Issuer Trust. Upon discovery by any of the Transferor, the Servicer, the Indenture Trustee or the Issuer Trust of a breach of any of the foregoing representations and warranties that materially and adversely affects the value of any Trust Asset or the interests of the Noteholders therein, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to the other parties. The obligations of the Transferor set forth in Section 3.03 hereof to cure any breach shall constitute ----------- the sole remedy available hereunder to the Noteholders, the Servicer, the Indenture Trustee or the Issuer Trust respecting a breach of the representations and warranties contained in this Section 3.01. ------------
Appears in 1 contract
Samples: Sale and Servicing Agreement (Ascent Entertainment Group Inc)
Representations and Warranties of the Transferor. The Transferor represents and warrants to you the Initial Purchasers, as of the date hereof and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreement(unless otherwise specified), as follows:
(a) a registration statement on Form S-3 (having Each of the registration number stated in the applicable Terms Agreement), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes Preliminary Offering Circular and the offering thereof from time to time in accordance with Rule 415 under Other Materials were as of their respective dates, at the Securities Act Time of 1933, Sale and as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amendedClosing Date, and the prospectus relating to the sale of the Notes offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) Final Offering Circular is as of the date of execution thereof and as of the related Terms AgreementClosing Date, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied accurate in all material respects with the applicable requirements respects, and each of the Act Preliminary Offering Circular and the Rules Other Materials did not as of their respective dates, at the Time of Sale and Regulationsas of the Closing Date, and did the Final Offering Circular does not include any untrue statement of a material fact or, in the case as of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case date thereof and as of the ProspectusClosing Date, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they are made, not misleading; providedmisleading (it being understood that no representation or warranty is made with respect to the omission of information in the Preliminary Offering Circular regarding the final amount of the Offered Notes (as reflected in the Final Offering Circular) or pricing and price dependent information, howeverwhich information shall of necessity appear only in the Final Offering Circular). Notwithstanding the foregoing, that the foregoing this representation and warranty does not apply to information contained any statements or omissions made in or omitted from either of the documents based reliance upon written information furnished to the Transferor by any Underwriter specifically for use and in connection conformity with the preparation of the Registration Statement or the Prospectus;Initial Purchasers Information.
(db) the The Transferor is a corporation duly organized and validly existing in good standing under the laws of the State of DelawareUnited States, with full corporate power, authority and legal right to own its properties and conduct its business as described in the ProspectusPreliminary Offering Circular and the Final Offering Circular, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) Seller in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders holders of the Notes under the Master Indenture or the Receivables under any Indenture Supplement;the Receivables Purchase Agreement or the Transfer and Servicing Agreement.
(ec) the Note Trust is a business trust duly organized Receivables have been acquired and validly existing in good standing will be acquired by the Seller under the laws of Operating Agreement and the State of DelawareParticipation Agreement, with full power, authority and legal right to own its properties and conduct its business other than the Retained Interest (as described defined in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirementsParticipation Agreement), which is held by the Bank, by the Transferor under the Receivables Purchase Agreement and has obtained all necessary licenses by the Issuer under the Transfer and approvals (except with respect Servicing Agreement free and clear of any lien, charge or encumbrance, but subject to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes rights of the related Series, on obligors; as of the date of such Terms Agreement, will have been duly hereof and validly authorized and, when such Notes are duly and validly executed by or on behalf as of the Note TrustTime of Delivery, authenticated by neither the Indenture Trustee Bank nor the Transferor is obligated to repurchase Receivables in the Initial Accounts or in any Additional Accounts (each as defined in the Transfer and delivered in accordance with the Master Indenture and the applicable Indenture Supplement and delivered and paid for as provided herein, will be Servicing Agreement) constituting a legal, valid and binding obligation material portion of the Note Trust, enforceable against aggregate Receivables in the Note Trust Accounts (as defined in accordance with its terms, the Transfer and validly issued and outstanding and entitled to Servicing Agreement) existing as of the benefits and security afforded by the Master Indenture and the applicable Indenture Supplement;Closing Date.
(gd) the The execution, delivery and performance by the Transferor of this Agreement, each applicable Terms the Receivables Purchase Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser Trust Agreement (as amended, supplemented or otherwise modified from time to timecollectively, the "Purchase Agreement"), “Transferor Agreements”) and the consummation by the Transferor of the transactions provided for herein and therein, therein have been, or will have been, been duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, thereof will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the TransferorLimited Liability Company Agreement, or (ii) conflict with any of the provisions of any law, government governmental rule, regulation, judgment, decree or order binding on the Transferor or its properties properties, or (iii) conflict with any of the material provisions of any material indenture, mortgage, contract or other instrument to which the Transferor is a party or by which it is bound bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument;.
(he) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will The Transferor Agreements constitute a legal, valid and binding agreement obligations of the Transferor, enforceable against the Transferor in accordance with its their respective terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' ’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity;.
(if) all All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale delivery of the Notes Receivables to the Owner Trustee on behalf of the Issuer have been taken or obtained.
(g) Other than as set forth or contemplated in the Preliminary Offering Circular, there are no legal or governmental proceedings pending or, to the knowledge of the Transferor, threatened to which any of the Transferor is a Series pursuant party or to this Agreementwhich any property of the Transferor is the subject which, if determined adversely to the applicable Terms AgreementTransferor, could individually or in the Indenture aggregate reasonably be expected to (i) have a material adverse effect on the financial position or results of operations of the Transferor, taken as a whole, and the applicable Indenture Supplementinterests of the holders of the Notes, have been or will be taken or obtained on or prior (ii) impair materially the ability of the Transferor to perform its obligations under the applicable Delivery Date;Transferor Agreements.
(jh) this This Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;.
(ki) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus Supplement;
(l) any Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes of the related Series Transferor Agreements shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Closing Date to the extent then due; and.
(j) When the Series 2011-1 Notes are issued pursuant to the Indenture, the Offered Notes will be eligible for resale pursuant to Rule 144A and will not be of the same class (within the meaning of Rule 144A under the Act) as securities that are listed on a national securities exchange registered under Section 6 of the Exchange Act, or quoted in a U.S. automated inter-dealer quotation system.
(k) Neither the Transferor nor any person acting on its behalf has offered or sold any Series 2011-1 Notes by means of any general solicitation or general advertising within the meaning of Rule 502(c) under the Act. Neither the Transferor nor any of its affiliates (directly or indirectly) has offered or sold or will offer or sell any Series 2011-1 Notes or similar security in a manner that would render the issuance and sale of the Series 2011-1 Notes a violation of Section 5 of the Act, or require registration pursuant thereto, nor will it authorize any person to act in such manner.
(l) When the Series 2011-1 Notes are issued pursuant to the Indenture, the Issuer will not be an “investment company” or “controlled” by an “investment company” as each such term is defined in the Investment Company Act of 1940.
(m) The Owner (as defined in the Notes Trust Agreement) is the sole beneficial owner of the related Series, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement conform in all material respects to the description thereof in the ProspectusIssuer.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor represents and warrants to you as of to, and agrees with, the date hereof and to the several Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreement, as followsthat:
(a) a A registration statement on Form S-3 (having the registration number stated in the applicable Terms AgreementNo. 333-79453), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes Certificates and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes Certificates offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including the base prospectus and any prospectus supplement filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relatesCertificates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to on Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on On the effective date of the Registration Statement, the Registration Statement and the Prospectus complied conformed in all material respects with to the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof)this Agreement, the Registration Statement and the Prospectus will comply conform in all material respects with to the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained statements in or omitted omissions from either of the documents Registration Statement or the Prospectus based upon written information furnished to the Transferor by any Underwriter the Underwriters specifically for use therein, it being understood and agreed that the only such information is that described as such in connection with the preparation of the Registration Statement or the Prospectus;Section 7(b).
(dc) the The Transferor is a corporation national banking association duly organized and validly existing in good standing under the laws of the State of DelawareUnited States, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, ; is duly qualified to do business and is in good standing (or is exempt from such requirements), ) and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders Certificateholders under the Master Indenture Pooling and Servicing Agreement.
(d) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation by the Transferor of the transactions contemplated by this Agreement in connection with the issuance and sale of the Certificates by the Transferor, except such as have been obtained and made under the Act, such as may be required under state securities laws and the filing of any Indenture Supplement;financing statements required to perfect the Trust's interest in the Receivables or as otherwise provided in the Basic Documents.
(e) The Transferor is not in violation of its Articles of Association or Bylaws or in default in the Note Trust performance or observance of any obligation, agreement, covenant or condition contained in any agreement or instrument to which it is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own party or by which it or its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in are bound which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under transactions contemplated in the Master Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, on the date of such Terms Agreement, will have been duly and validly authorized and, when such Notes are duly and validly executed by or on behalf of the Note Trust, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture and the applicable Indenture Supplement and delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture and the applicable Indenture Supplement;
(g) the Basic Documents. The execution, delivery and performance by of the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement Basic Documents and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, issuance and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), and the consummation by the Transferor sale of the transactions provided for herein Certificates and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the terms and provisions hereof or thereof, thereof will (i) conflict with or not result in a material breach or violation of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation statute, rule, regulation or by-laws of the Transferor, or (ii) conflict with any of the provisions order of any lawgovernmental agency or body or any court, government ruledomestic or foreign, regulation, judgment, decree or order binding on having jurisdiction over the Transferor or its properties or (iii) conflict with any of the provisions of its properties, or any material indenture, mortgage, contract agreement or other instrument to which the Transferor is a party or by which it the Transferor is bound or (iv) result in the creation or imposition of any lien, charge or encumbrance upon to which any of its property pursuant to the terms properties of any such indenturethe Transferor is subject, mortgage, contract or other instrument;
(h) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will constitute a legal, valid and binding agreement Articles of Association or Bylaws of the Transferor, enforceable against and the Transferor has full power and authority to authorize, issue and sell the Certificates as contemplated by this Agreement and the Transferor has full power and authority to enter into the Basic Documents to which it is a party.
(f) As of the Closing Date, the representations and warranties of the Transferor in accordance with its terms, except the Basic Documents to the extent that the enforceability thereof may which it is a party will be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter true and correct in effect relating to creditors' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity;all material respects.
(ig) all approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Date;
(j) this This Agreement has been andduly authorized, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;.
(kh) The Transferor has authorized the Trust to issue and sell the Certificates.
(i) Wachovia Corporation (the "Company") has delivered to you complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Transferor for the three most recent years for which such reports are available, as submitted to the Comptroller of the Currency; except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Company since the last such report;
(j) The Company has delivered to you complete and correct copies of Form 10-Q for the second quarter of 1999 and Form 10-K for 1998. Except as set forth in or contemplated in a Registration Statement and the Prospectus, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise) of either the Transferor or the Company or the credit card business of the Company or its Affiliates since the date of the applicable Prospectus Supplement;information provided pursuant to the preceding sentence.
(lk) any Any taxes, fees and other governmental charges due and payable from or by the Transferor in connection with the execution, delivery and performance by of the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement Basic Documents and the Notes of the related Series Certificates and any other agreements contemplated therein shall have been paid or will be paid by or on behalf of the Transferor Transferor, at or prior to the applicable Delivery Closing Date to the extent then due; and.
(ml) the Notes The Certificates have been duly and validly authorized by all required action of the related SeriesBank, and, when duly and validly executed by the IndentureBank, authenticated by the applicable Indenture Supplement, Trustee and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for by the Collateral Series SupplementUnderwriters as provided herein, will be validly issued and outstanding and entitled to the Transfer benefits of the Pooling and Servicing Agreement. As of the Closing Date, the Purchase Agreement Certificates will have been duly and any applicable Enhancement Agreement validly executed by the Bank, and will conform in all material respects to the description descriptions thereof contained in the Prospectus.
(m) The Receivables conformed in all material respects with the description thereof contained in the Prospectus as of the dates specified therein.
(n) The Trust is not, and will not become as a result of the issuance and sale of the Certificates, subject to regulation as an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "1940 Act").
Appears in 1 contract
Samples: Underwriting Agreement (Wachovia Credit Card Master Trust)
Representations and Warranties of the Transferor. The Transferor ------------------------------------------------ represents and warrants to you each Underwriter as of the date hereof and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreementhereof, as follows:
(a) a registration statement Registration Statement on Form S-3 (having the registration number stated in the applicable Terms AgreementFile No. 333-94241), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes asset backed securities of various classes and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), series has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, . Such Registration Statement has become effective; such registration statement. No stop orders suspending the effectiveness of the Registration Statement have been issued and no procedures for that purpose have been instituted or to the Transferor's knowledge, as amendedthreatened by the Commission. A prospectus supplement (the "Prospectus Supplement") setting forth the terms of the offering, sale and plan of distribution of the Certificates and additional information concerning the Certificates, including the terms thereof, and the prospectus relating to the sale of the Notes offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus and its affiliates' credit card business has been prepared and will be filed with the Commission timely pursuant to Rule 424(b) of the rules Rules and regulations Regulations of the Commission (the "Rules and Regulations") under following the Act)execution of this Agreement. Such Registration Statement, are respectively as from time to time amended and supplemented, is referred to herein as the "Registration Statement" and the final form of Prospectus included in the Registration Statement, as supplemented by the Prospectus Supplement in the form to be filed with the Commission pursuant to Rule 424(b) is referred to as the "Prospectus" (the "Prospectus"; provided, however, that a supplement to the ). The Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") Supplement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relatesCertificates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms this Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have the Representative has agreed in writing, shall be in all substantive respects in the form furnished to you the Representative prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary preliminary Prospectus Supplement that has previously been furnished to youthe Representative) as the Transferor has advised youthe Representative, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement hereof and on each Delivery the Closing Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to ----------------- information contained in or omitted from either of the documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders Certificateholders under the Master Indenture Pooling and Servicing Agreement or under any Indenture the Series 2001-2 Supplement;
(e) the Note Trust is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, on the date of such Terms this Agreement, the Certificates, the Class C Securities and the Class D Certificates will have been duly and validly authorized and, when such Notes the Certificates, the Class C Securities and the Class D Certificates are issued on the Closing Date each will be duly and validly executed by or on behalf of the Note TrustTransferor, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture Pooling and Servicing Agreement and the applicable Indenture Series 2001-2 Supplement and and, when the Certificates are delivered and paid for as provided herein, and when the Class C Securities and the Class D Certificates are delivered and paid for by the purchaser thereof or retained by the Transferor, as the case may be, the Certificates, the Class C Securities and the Class D Certificates will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture Pooling and Servicing Agreement and the applicable Indenture Series 2001-2 Supplement;
(gf) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series 2001-2 Supplement, the Transfer and Servicing Agreement Certificates, the Class C Securities and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement")Class D Certificates, and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have beenbeen as of the Closing Date, duly authorized by the Transferor by all necessary corporate action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate Certificate of incorporation Incorporation or byBy-laws Laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument to which the Transferor is a party or by which it is bound bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrumentinstrument other than pursuant to the Pooling and Servicing Agreement and the Series 2001-2 Supplement;
(g) the Pooling and Servicing Agreement constitutes a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights in general and to general principles of equity (whether considered in a proceeding at law or in equity);
(h) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement 2001-2 Supplement will constitute a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity (whether considered in a proceeding at law or in equity);
(i) all approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the foreign or state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series Certificates pursuant to this Agreement, the applicable Terms Agreement, the Indenture Pooling and Servicing Agreement and the applicable Indenture Series 2001-2 Supplement and the Class C Securities and the Class D Certificates pursuant to the Pooling and Servicing Agreement and the Series 2001-2 Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Closing Date;
(j) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(k) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus SupplementJune 6, 2001;
(l) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement 2001-2 Supplement and the Notes Certificates (except for transfer, income or other taxes due upon the sale of the related Series Certificates by the Underwriters or any Subsequent Purchaser) shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Closing Date to the extent then due; and
(m) the Notes of the related SeriesCertificates, the IndentureClass C Securities, the applicable Indenture SupplementClass D Certificates, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement the Series 2001-2 Supplement conform and will conform as of the Closing Date in all material respects to the description descriptions thereof in the Prospectus.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor represents and warrants to you as of the date hereof and to the Underwriters named in the applicable appli- cable Terms Agreement as of the date of such Terms Agreement, as follows:
(a) a registration statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes Certificates and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes Certificates offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes Certificates to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the such documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a corporation national banking association duly organized and validly existing in good standing under the laws of the State of DelawareUnited States, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests inter- ests of Noteholders Certificateholders under the Master Indenture Pooling and Servicing Agreement or under any Indenture Supplement;
(e) the Note Trust is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes Certificates of the related Series, on the date of such Terms Agreement, will have been duly and validly authorized and, when such Notes Certificates are duly and validly executed by or on behalf of the Note TrustTransferor, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture and the applicable Indenture Supplement and delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture and the applicable Indenture Supplement;
(g) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument to which the Transferor is a party or by which it is bound or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument;
(h) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will constitute a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity;
(i) all approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Date;
(j) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(k) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus Supplement;
(l) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes of the related Series shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Date to the extent then due; and
(m) the Notes of the related Series, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement conform in all material respects to the description thereof in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Fnanb Credit Card Master Trust)
Representations and Warranties of the Transferor. The Transferor represents and warrants to you each Underwriter as of the date hereof and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreementhereof, as follows:
(a) a registration statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), 333______) including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), Certificates has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more a preliminary prospectuses and prospectus supplements (each, a the "Preliminary Prospectus") meeting the requirements of Rule 430 of the Securities Act as 1933, as amended (the "Act"), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes Certificates offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms this Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement hereof and on each Delivery the Closing Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly existing in good standing under the laws of the State state of DelawareNevada, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders Certificateholders under the Master Indenture Pooling and Servicing Agreement or under any Indenture the Supplement;
(e) the Note Trust is a business trust duly organized Certificates, the Collateral Interest and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, Class D Certificates on the date of such Terms this Agreement, will have been duly and validly authorized and, when such Notes the Certificates and the Class D Certificates are duly and validly executed by or on behalf of the Note TrustTransferor, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture Pooling and Servicing Agreement and the applicable Indenture Supplement and, when the Certificates, the Collateral Interest and the Class D Certificates are delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture Pooling and Servicing Agreement and the applicable Indenture Supplement;
(gf) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series SupplementSupplement and the Certificates, the Transfer and Servicing Agreement Collateral Interest and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement")Class D Certificates, and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate articles of incorporation association or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, 5 regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument to which the Transferor is a party or by which it is bound or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument;
(hg) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, Supplement and the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will each constitute a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity;
(ih) all approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series Certificates the Collateral Interest and the Class D Certificates pursuant to this Agreement, the applicable Terms Enhancement Agreement, the Indenture Pooling and Servicing Agreement and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Closing Date;
(ji) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(kj) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus Supplement__________________;
(lk) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes of the related Series Certificates shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Closing Date to the extent then due; and
(ml) the Notes of the related SeriesCertificates, the IndentureCollateral Interest, the applicable Indenture SupplementClass D Certificates, the Pooling and Servicing Agreement, the Collateral Series Supplement, Supplement and the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement conform in all material respects to the description thereof in the Prospectus.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor ------------------------------------------------ represents and warrants to you each Underwriter as of the date hereof and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreementhereof, as follows:
(a) a registration statement Registration Statement on Form S-3 (having the registration number stated in the applicable Terms AgreementFile No. 333-48739), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes asset backed securities of various classes and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), series has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, . Such Registration Statement has become effective; such registration statement. No stop orders suspending the effectiveness of the Registration Statement have been issued and no procedures for that purpose have been instituted or to the Transferor's knowledge, as amendedthreatened by the Commission. A prospectus supplement (the "Prospectus Supplement") setting forth the terms of the offering, sale and plan of distribution of the Certificates and additional information concerning the Certificates, including the terms thereof, and the prospectus relating to the sale of the Notes offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus and its affiliates' credit card business has been prepared and will be filed with the Commission timely pursuant to Rule 424(b) of the rules Rules and regulations Regulations of the Commission (the "Rules and Regulations") under following the Act)execution of this Agreement. Such Registration Statement, are respectively as from time to time amended and supplemented, is referred to herein as the "Registration Statement" and the final form of Prospectus included in the Registration Statement, as supplemented by the Prospectus Supplement in the form to be filed with the Commission pursuant to Rule 424(b) is referred to as the "Prospectus" (the "Prospectus"; provided, however, that a supplement to the ). The Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") Supplement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relatesCertificates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms this Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have the Representative has agreed in writing, shall be in all substantive respects in the form furnished to you the Representative prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary preliminary Prospectus Supplement that has previously been furnished to youthe Representative) as the Transferor has advised youthe Representative, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement hereof and on each Delivery the Closing Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to -------- ------- information contained in or omitted from either of the documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders Certificateholders under the Master Indenture Pooling and Servicing Agreement or under any Indenture the Series 1999-1 Supplement;
(e) the Note Trust is a business trust duly organized Certificates and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, Collateral Interest on the date of such Terms this Agreement, will have been duly and validly authorized and, when such Notes the Certificates and the Collateral Interest are on the Closing Date, duly and validly executed by or on behalf of the Note TrustTransferor, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture Pooling and Servicing Agreement and the applicable Indenture Series 1999-1 Supplement and and, when the Certificates are delivered and paid for as provided hereinherein and when the Collateral Interest are delivered and paid for by the purchaser thereof or retained by the Transferor, as the case may be, the Certificates and the Collateral Interest will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture Pooling and Servicing Agreement and the applicable Indenture Series 1999-1 Supplement;
(gf) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series 1999-1 Supplement, the Transfer and Servicing Agreement Certificates and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement")Collateral Interest, and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have beenbeen as of the Closing Date, duly authorized by the Transferor by all necessary corporate action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate Certificate of incorporation Incorporation or byBy-laws Laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument to which the Transferor is a party or by which it is bound or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrumentinstrument other than pursuant to the Pooling and Servicing Agreement and the Series 1999-1 Supplement;
(g) the Pooling and Servicing Agreement constitutes a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights in general and to general principles of equity (whether considered in a proceeding at law or in equity);
(h) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement 1999-1 Supplement will constitute a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity (whether considered in a proceeding at law or in equity);
(i) all approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the foreign or state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series Certificates pursuant to this Agreement, the applicable Terms Agreement, the Indenture Pooling and Servicing Agreement and the applicable Indenture Series 1999-1 Supplement and the Collateral Interest pursuant to the Pooling and Servicing Agreement and the Series 1999-1 Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Closing Date;
(j) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(k) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus SupplementJune 2, 1999;
(l) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement 1999-1 Supplement and the Notes Certificates (except for transfer, income or other taxes due upon the sale of the related Series Certificates by the Underwriters or any Subsequent Purchaser) shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Closing Date to the extent then due; and
(m) the Notes of the related SeriesCertificates, the Indenture, the applicable Indenture SupplementCollateral Interest, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement the Series 1999-1 Supplement conform and will conform as of the Closing Date in all material respects to the description descriptions thereof in the Prospectus.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor represents hereby makes the following representations and warrants warranties to you the Purchasers, the Managing Agents and the Administrative Agent, as of the date hereof Closing Date and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreement, as follows:
(a) a registration statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amendedeach Incremental Funding Date, and the prospectus relating to Purchasers, the sale of the Notes offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" Managing Agents and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") Administrative Agent shall be deemed to have supplemented relied on such representations and warranties in purchasing the Prospectus only with respect Series 2012-VFN Note on the Closing Date, entering into this Agreement and in making (or committing to make) each Incremental Funding on each Incremental Funding Date.
(a) The Transferor hereby represents and warrants to the offering Purchasers and the Administrative Agent that the representations and warranties of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as Transferor set forth in the General Instructions to Form S-3Series Documents each are true and correct on the Closing Date or Incremental Funding Date, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;as applicable.
(b) as Each of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(e) the Note Trust is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, on the date of such Terms Agreement, will have been duly and validly authorized and, when such Notes are duly and validly executed by or on behalf of the Note Trust, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture and the applicable Indenture Supplement and delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture and the applicable Indenture Supplement;
(g) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument Documents to which the Transferor is a party or by which it is bound or (iv) result in the creation or imposition of any lienhas been duly authorized, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument;
(h) when executed and delivered by the parties theretoTransferor, and is the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will constitute a legal, valid and legally binding agreement obligation of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' ’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor generally and to (ii) general principles of equity;equity and the discretion of the court before which any proceeding therefor may be brought.
(ic) all approvalsEach Series 2012-VFN Note has been duly and validly authorized, authorizationsand, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required when executed and authenticated in connection accordance with the valid and proper authorization, issuance and sale terms of the Notes of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture and the applicable Indenture Supplement, have been or and delivered to and paid for in accordance with this Agreement, will be taken or obtained on or prior duly and validly issued and outstanding and will be entitled to the applicable Delivery Date;benefits of the Indenture and the Indenture Supplement, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(jd) There is no pending or, to the Transferor’s knowledge, threatened action, suit or proceeding by or against the Transferor, the Issuing Entity or the Master Trust before any Governmental Authority or any arbitrator (i) asserting the invalidity of this Agreement, any other Series Document or the Series 2012-VFN Notes, (ii) seeking to prevent the issuance of the Series 2012-VFN Notes or the consummation of any of the transactions contemplated by this Agreement has been andor any other Series Document, as of (iii) that might materially and adversely affect the date thereof, the applicable Terms Agreement will have been duly executed and delivered performance by the Transferor;, the Issuing Entity or the Master Trust of its obligations under, or the validity or enforceability of, this Agreement, any other Series Document or the Series 2012-VFN Notes or (iv) that if determined adversely to the Transferor, the Issuing Entity or the Master Trust would have a Material Adverse Effect.
(ke) except as set forth The Transferor (i) is not in violation of its Certificate of Incorporation or contemplated By-Laws and (ii) is not in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial breach or otherwise) violation of any of the terms or provisions of, or with the giving of notice or lapse of time, or both, would be in default under, any contract, indenture, mortgage, deed of trust, loan agreement, note, lease, partnership agreement, or other agreement or instrument to which the Transferor since the date is a party or by which it may be bound or to which any of the applicable Prospectus Supplement;its properties or assets may be subject, except for such violations or defaults that would not have a Material Adverse Effect.
(lf) any Any taxes, fees and other governmental charges of Governmental Authorities applicable to the Transferor in connection with the execution, delivery and performance by the Transferor of this Agreement, the Series Documents or otherwise applicable Terms Agreement, to the Indenture, Transferor in connection with the applicable Indenture Supplement, Master Trust or the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes of the related Series shall Issuing Entity have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Closing Date or Incremental Funding Date, as applicable, to the extent then due; and, except for any such failures to pay which, individually and in the aggregate, would not have a Material Adverse Effect.
(g) The Master Trust has been duly created and is validly existing under the laws of the State of Illinois. The Issuing Entity has been duly created and is validly existing under the laws of the State of Delaware. The Transferor has authorized the Issuing Entity to issue and sell the Series 2012-VFN Notes.
(h) On the date hereof and on each Incremental Funding Date, none of the Transferor, the Master Trust or the Issuing Entity is insolvent or the subject of any voluntary or involuntary bankruptcy proceeding.
(i) No proceeds of a purchase hereunder will be used by the Transferor (i) for a purpose that violates or would be inconsistent with Regulations T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time or (ii) to acquire any security in any transaction in violation of Section 13 or 14 of the Securities Exchange Act of 1934.
(j) Assuming the accuracy of the representations and warranties of each of the Purchasers in Article VI of this Agreement, the sale of the Series 2012-VFN Note pursuant to the terms of this Agreement, the Indenture and the Indenture Supplement will not require registration of the Series 2012-VFN Note under the Securities Act.
(k) Neither Transferor nor the Issuing Entity is an “investment company” or is controlled by an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”). The Issuing Entity is not a “covered fund” as defined by the regulations implementing Section 619 of the Xxxx-Xxxxx Xxxx Street and Consumer Protection Act (commonly known as the “Xxxxxxx Rule”). In making such determination, the Issuing Entity is relying on the exclusion from the definition of “investment company” under the Investment Company Act contained in Section 3(c)(5) under the Investment Company Act, although there may be additional exclusions or exemptions available to the Issuing Entity.
(l) No written information furnished or to be furnished by the Transferor or any of its Affiliates, agents or representatives to the Purchasers, the Managing Agents or the Administrative Agent for purposes of or in connection with this Agreement, including, without limitation, any reports delivered pursuant to Section 7.06 and any information relating to the Dealer Notes and NFC’s dealer financing business, is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case as of the date such information was or shall be stated or certified and as of the date such information was delivered by the Transferor or any of its Affiliates, agents or representatives to the Purchasers, the Managing Agents or the Administrative Agent.
(m) the Notes NFC owns, and shall retain, in its capacity as an “originator” (as such term is defined in Article 4(13) of the related SeriesCRR), directly or indirectly, 100% of the equity interests in the Transferor, and shall not sell or otherwise transfer or enter into any credit risk mitigation, short positions or any other hedge with respect to its ownership interest in the Transferor except as permitted under the Risk Retention Requirements and NFC shall represent in each Servicer’s Certificate that it continues to own such material net economic interest in accordance with the Risk Retention Requirements. The Transferor (i) retains, and shall continue to retain a net economic interest of no less than 5% of the nominal value of the exposure in connection with the Dealer Notes, (ii) has not changed since the Amendment No. 4 Effective Date, and shall not change the manner in which it retains such net economic interest, except to the extent permitted under the Risk Retention Requirements, and (iii) has not entered into, and will not enter into, any credit risk mitigation, short positions or any other hedge with respect to such net economic interest, except to the permitted under the Risk Retention Requirements.[Reserved].
(n) Neither the Issuing Entity nor the Transferor, nor, to the knowledge of the Issuing Entity and the Transferor, any director, officer, employee, agent or affiliate thereof, is an individual or entity that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority or (iii) located (to the extent in violation of Sanctions), organized or resident (to the extent in violation of Sanctions) in a Designated Jurisdiction.
(o) The Issuing Entity and the Transferor are in compliance with the United States Foreign Corrupt Practices Act of 1977, the IndentureUK Xxxxxxx Xxx 0000, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer other similar anti-corruption legislation in other relevant jurisdictions and Servicing Agreement, the Purchase Agreement have instituted and any applicable Enhancement Agreement conform in all material respects maintained policies and procedures designed to the description thereof in the Prospectuspromote and achieve compliance with such laws.
Appears in 1 contract
Samples: Note Purchase Agreement (Navistar International Corp)
Representations and Warranties of the Transferor. (a) The Transferor hereby represents and warrants to you as First Sierra, the Indenture Trustee, the Issuer, the Owner Trustee, the Note Insurer, the Letter of the date hereof Credit Bank and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms AgreementPSSFC, as follows:
(a) a registration statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of this Agreement and as of the related Terms AgreementClosing Date, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;that:
(ci) on the effective date of the Registration StatementThe Transferor is duly organized, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulationsvalidly existing, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly existing in good standing as a corporation under the laws of the State of DelawareDelaware and has all licenses necessary to carry on its business as now being conducted and is licensed, with qualified and in good standing in each State the laws of which require licensing or qualification in order to conduct business of the type conducted by the Transferor and to perform its obligations as the Transferor hereunder; the Transferor has the full power, power and authority and legal right to own its properties and conduct property, to carry on its business as described in presently conducted to execute and deliver this Agreement and the Prospectus, is duly qualified other Transaction Documents to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(e) the Note Trust it is a business trust duly organized party and validly existing to perform in good standing under accordance herewith and therewith; the laws execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) and the other Transaction Documents to which it is a party by the Transferor and the consummation of the State of Delaware, with full power, authority transactions contemplated hereby and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, on the date of such Terms Agreement, will thereby have been duly and validly authorized and, when such Notes are duly and validly executed by or on behalf of the Note Trust, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture and the applicable Indenture Supplement and delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture and the applicable Indenture Supplement;
(g) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on action; this Agreement and each other Transaction Document to which it is a party evidences the part valid, binding and enforceable obligation of the Transferor; and neither the execution and delivery all requisite action has been taken by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms to make this Agreement and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or each other instrument Transaction Document to which the Transferor it is a party or by which it is bound or (iv) result in the creation or imposition of any lienvalid, charge or encumbrance binding and enforceable upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument;
(h) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will constitute a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability thereof as such enforcement may be subject to limited by bankruptcy, insolvency, reorganization, receivership, conservatorshipmoratorium and other, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally or by the application of general equitable principles in general as such laws would apply in the event of the insolvencyany proceeding, liquidation or reorganization or other similar occurrence with respect to the Transferor whether at law or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity;
(iii) all All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, consentsrights and licenses required to be taken, orders given or obtained, as the case may be, by or from any federal, state or other actions of any persongovernmental authority or agency, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Date;
(j) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(k) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus Supplement;
(l) any taxes, fees and other governmental charges that are necessary in connection with the execution, delivery and performance by the Transferor of this AgreementAgreement and the other Transaction Documents to which it is a party have been duly taken, given or obtained, as the applicable Terms Agreementcase may be, are in full force and effect, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the Indenturetime within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the applicable Indenture Supplementconsummation of the transactions contemplated by this Agreement and each other Transaction Document to which it is a party on the part of the Transferor and the performance by the Transferor of its obligations under this Agreement and each other Transaction Document to which it is a party;
(iii) The consummation of the transactions contemplated by this Agreement and the other Transaction Documents to which it is a party will not result in the breach of any terms or provisions of the charter or bylaws of the Transferor or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the Pooling and Servicing Agreementacceleration of any obligation under, any material agreement, indenture, contract or loan or credit agreement or other material instrument to which the Collateral Series SupplementTransferor or its property, is subject, or result in the Transfer and Servicing Agreementviolation of any law, rule, regulation, order, judgment or decree to which the Purchase Transferor or its property is subject;
(iv) There is no action, suit, proceeding or investigation pending or, to the best of the knowledge of the Transferor, threatened, before any court, administrative agency or tribunal against the Transferor which, either in any one instance or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Transferor or in any material prohibition or impairment of the right or ability of the Transferor to carry on its business substantially as now conducted, or in any material liability on the part of the Transferor or which would draw into question the validity or enforceability of this Agreement, any applicable Enhancement Agreement and other Transaction Document to which it is a party, or the Notes Contracts or of any action taken or to be taken in connection with the related Series shall have been paid or will be paid by or on behalf obligations of the Transferor at contemplated herein, or prior which would be likely to impair materially the ability of the Transferor to perform under the terms of this Agreement or any other Transaction Document to which it is a party or that might prohibit its entering into this Agreement or any other Transaction Document to which it is a party or the consummation of any of the transactions contemplated hereby or thereby;
(v) The Transferor is not in violation of or in default with respect to, and the execution and delivery of this Agreement or any other Transaction Document to which it is a party by the Transferor and its performance of and compliance with the terms hereof and thereof will not constitute a violation or default with respect to, any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which violation or default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Transferor or its properties or might have consequences that would materially and adversely affect its performance hereunder or under any other Transaction Document to which it is a party;
(vi) This Agreement constitutes a valid transfer and assignment of the Transferred Property to the applicable Delivery Date Trust. Upon the transfer of the Transferred Property to the extent then dueTrust at the direction of PSSFC, the Trust will have good title to each related Contract and such other items comprising the corpus of the Trust free and clear of any Lien;
(vii) In the event that the transfer of the Transferred Property by the Transferor to the Trust at the direction of PSSFC is deemed to be a grant to the Trust of a security interest in the Transferred Property rather than a transfer, the Trust will have a valid first priority perfected security interest in all of the Transferor's right, title and interest in and to the Transferred Property, except for the Equipment not owned by the Transferor and a valid assignment of its security interest in the Equipment not owned by the Transferor;
(viii) The transfer, assignment and conveyance of the Contracts by the Transferor pursuant to this Agreement are not subject to the bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction; and
(mix) The consideration received by the Notes Transferor as set forth herein is fair consideration having value reasonably equivalent to or in excess of the related Seriesvalue of the Conveyed Assets and the performance of the Transferor's obligations hereunder.
(b) The Transferor additionally represents and covenants that:
(i) The Transferor shall be operated in such a manner that it would not be substantively consolidated in the trust estate of any other Person in the event of a bankruptcy or insolvency of such Person and in such regard, the Indenture, Transferor shall:
(A) not become involved in the applicable Indenture Supplement, day-to-day management of any other Person; (B) not permit First Sierra to become involved in the Pooling and Servicing Agreement, day-to-day management of the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement conform in all material respects Transferor except to the description thereof extent provided in the Prospectus.Transaction Documents; (C) not engage in transactions with any other Person other than those activities described in Article II hereof and matters necessarily incident thereto; (D) maintain separate corporate records and books of account in a separate business office from any other Person; (E) prepare financial statements and books and records of First Sierra after the Closing Date which will reflect the separate existence of the Transferor; (F) maintain its assets separately from the assets of any other Person (including through the maintenance of a separate bank account); (G) maintain separate financial statements, books and records from any other Person; (H) not guarantee any other Person's obligations or advance funds to, or accept funds from, any other Person for the payment of expenses or otherwise permit First Sierra to guarantee any of the Transferor's obligations; (I) conduct all business correspondence of the Transferor and other communications in the Transferor's own name; (J) not act as an agent of any other Person in any capacity except pursuant to contractual documents indicating such capacity and only in respect of transactions described in Article II hereof and matters necessarily incident thereto; (K) not fail to hold appropriate meetings of the Board of Directors at least three times per annum and otherwise as necessary to authorize all corporate action; (L) not fail to hold meetings of the stockholders at least one time per annum; (M) not form, or cause to be formed, any subsidiaries; (N) not act as an agent of First Sierra nor permit First Sierra to act as its agent except to the limited extent permitted under the Transaction Documents; (O) maintain two independent directors at all times; (P) maintain a separate office from First Sierra; and
Appears in 1 contract
Samples: Depositor Transfer Agreement (Prudential Securities Secured Financing Corp)
Representations and Warranties of the Transferor. The Transferor represents hereby makes the following representations and warrants warranties to you the Purchasers, the Managing Agents and the Administrative Agent, as of the date hereof Closing Date and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreement, as follows:
(a) a registration statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amendedeach Incremental Funding Date, and the prospectus relating to Purchasers, the sale of the Notes offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" Managing Agents and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") Administrative Agent shall be deemed to have supplemented relied on such representations and warranties in purchasing the Prospectus only with respect Series 2012-VFN Note on the Closing Date, entering into this Agreement and in making (or committing to make) each Incremental Funding on each Incremental Funding Date.
(a) The Transferor hereby represents and warrants to the offering Purchasers and the Administrative Agent that the representations and warranties of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as Transferor set forth in the General Instructions to Form S-3Series Documents each are true and correct on the Closing Date or Incremental Funding Date, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;as applicable.
(b) as Each of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(e) the Note Trust is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, on the date of such Terms Agreement, will have been duly and validly authorized and, when such Notes are duly and validly executed by or on behalf of the Note Trust, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture and the applicable Indenture Supplement and delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture and the applicable Indenture Supplement;
(g) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument Documents to which the Transferor is a party or by which it is bound or (iv) result in the creation or imposition of any lienhas been duly authorized, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument;
(h) when executed and delivered by the parties theretoTransferor, and is the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will constitute a legal, valid and legally binding agreement obligation of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' ’ rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor generally and to (ii) general principles of equity;equity and the discretion of the court before which any proceeding therefor may be brought.
(ic) all approvalsEach Series 2012-VFN Note has been duly and validly authorized, authorizationsand, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required when executed and authenticated in connection accordance with the valid and proper authorization, issuance and sale terms of the Notes of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture and the applicable Indenture Supplement, have been or and delivered to and paid for in accordance with this Agreement, will be taken or obtained on or prior duly and validly issued and outstanding and will be entitled to the applicable Delivery Date;benefits of the Indenture and the Indenture Supplement, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought.
(jd) There is no pending or, to the Transferor’s knowledge, threatened action, suit or proceeding by or against the Transferor, the Issuing Entity or the Master Trust before any Governmental Authority or any arbitrator (i) asserting the invalidity of this Agreement, any other Series Document or the Series 2012-VFN Notes, (ii) seeking to prevent the issuance of the Series 2012-VFN Notes or the consummation of any of the transactions contemplated by this Agreement has been andor any other Series Document, as of (iii) that might materially and adversely affect the date thereof, the applicable Terms Agreement will have been duly executed and delivered performance by the Transferor;, the Issuing Entity or the Master Trust of its obligations under, or the validity or enforceability of, this Agreement, any other Series Document or the Series 2012-VFN Notes or (iv) that if determined adversely to the Transferor, the Issuing Entity or the Master Trust would have a Material Adverse Effect.
(ke) except as set forth The Transferor (i) is not in violation of its Certificate of Incorporation or contemplated By-Laws and (ii) is not in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial breach or otherwise) violation of any of the terms or provisions of, or with the giving of notice or lapse of time, or both, would be in default under, any contract, indenture, mortgage, deed of trust, loan agreement, note, lease, partnership agreement, or other agreement or instrument to which the Transferor since the date is a party or by which it may be bound or to which any of the applicable Prospectus Supplement;its properties or assets may be subject, except for such violations or defaults that would not have a Material Adverse Effect.
(lf) any Any taxes, fees and other governmental charges of Governmental Authorities applicable to the Transferor in connection with the execution, delivery and performance by the Transferor of this Agreement, the Series Documents or otherwise applicable Terms Agreement, to the Indenture, Transferor in connection with the applicable Indenture Supplement, Master Trust or the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes of the related Series shall Issuing Entity have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Closing Date or Incremental Funding Date, as applicable, to the extent then due; and, except for any such failures to pay which, individually and in the aggregate, would not have a Material Adverse Effect.
(mg) The Master Trust has been duly created and is validly existing under the Notes laws of the related SeriesState of Illinois. The Issuing Entity has been duly created and is validly existing under the laws of the State of Delaware. The Transferor has authorized the Issuing Entity to issue and sell the Series 2012-VFN Notes.
(h) On the date hereof and on each Incremental Funding Date, none of the Transferor, the IndentureMaster Trust or the Issuing Entity is insolvent or the subject of any voluntary or involuntary bankruptcy proceeding.
(i) No proceeds of a purchase hereunder will be used by the Transferor (i) for a purpose that violates or would be inconsistent with Regulations T, U or X promulgated by the applicable Indenture Supplement, Board of Governors of the Pooling Federal Reserve System from time to time or (ii) to acquire any security in any transaction in violation of Section 13 or 14 of the Securities Exchange Act of 1934.
(j) Assuming the accuracy of the representations and Servicing warranties of each of the Purchasers in Article VI of this Agreement, the Collateral sale of the Series Supplement, 2012-VFN Note pursuant to the Transfer and Servicing terms of this Agreement, the Purchase Agreement Indenture and the Indenture Supplement will not require registration of the Series 2012-VFN Note under the Securities Act.
(k) None of the Transferor, the Master Trust or the Issuing Entity is an “investment company” or is controlled by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(l) No written information furnished or to be furnished by the Transferor or any of its Affiliates, agents or representatives to the Purchasers, the Managing Agents or the Administrative Agent for purposes of or in connection with this Agreement, including, without limitation, any reports delivered pursuant to Section 7.06 and any applicable Enhancement Agreement conform in all material respects information relating to the description thereof Dealer Notes and NFC’s dealer financing business, is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the Prospectusstatements contained therein not misleading, in each case as of the date such information was or shall be stated or certified and as of the date such information was delivered by the Transferor or any of its Affiliates, agents or representatives to the Purchasers, the Managing Agents or the Administrative Agent.
Appears in 1 contract
Samples: Note Purchase Agreement (Navistar International Corp)
Representations and Warranties of the Transferor. The Transferor represents and warrants to you as of to, and agrees with, the date hereof and to the several Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreement, as followsthat:
(a) a A registration statement on Form S-3 (having the registration number stated in the applicable Terms AgreementNo. 333-79453), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes Certificates and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more preliminary prospectuses and prospectus supplements (each, a "Preliminary Prospectus") meeting the requirements of Rule 430 of the Act), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes Certificates offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including the base prospectus and any prospectus supplement filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relatesCertificates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to on Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on On the effective date of the Registration Statement, the Registration Statement and the Prospectus complied conformed in all material respects with to the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading misleading, and, in the case of the Prospectus, omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement and on each Delivery Date (as defined in Section 3 hereof)this Agreement, the Registration Statement and the Prospectus will comply conform in all material respects with to the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained statements in or omitted omissions from either of the documents Registration Statement or the Prospectus based upon written information furnished to the Transferor by any Underwriter the Underwriters specifically for use therein, it being understood and agreed that the only such information is that described as such in connection with the preparation of the Registration Statement or the Prospectus;Section 7(b).
(dc) the The Transferor is a corporation national banking association duly organized and validly existing in good standing under the laws of the State of DelawareUnited States, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, ; is duly qualified to do business and is in good standing (or is exempt from such requirements), ) and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders Certificateholders under the Master Indenture Pooling and Servicing Agreement.
(d) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation by the Transferor of the transactions contemplated by this Agreement in connection with the issuance and sale of the Certificates by the Transferor, except such as have been obtained and made under the Act, such as may be required under state securities laws and the filing of any Indenture Supplement;financing statements required to perfect the Trust's interest in the Receivables or as otherwise provided in the Basic Documents.
(e) The Transferor is not in violation of its Articles of Association or Bylaws or in default in the Note Trust performance or observance of any obligation, agreement, covenant or condition contained in any agreement or instrument to which it is a business trust duly organized and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own party or by which it or its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in are bound which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under transactions contemplated in the Master Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, on the date of such Terms Agreement, will have been duly and validly authorized and, when such Notes are duly and validly executed by or on behalf of the Note Trust, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture and the applicable Indenture Supplement and delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture and the applicable Indenture Supplement;
(g) the Basic Documents. The execution, delivery and performance by of the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement Basic Documents and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, issuance and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement"), and the consummation by the Transferor sale of the transactions provided for herein Certificates and therein, have been, or will have been, duly authorized by the Transferor by all necessary action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the terms and provisions hereof or thereof, thereof will (i) conflict with or not result in a material breach or violation of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated certificate of incorporation statute, rule, regulation or by-laws of the Transferor, or (ii) conflict with any of the provisions order of any lawgovernmental agency or body or any court, government ruledomestic or foreign, regulation, judgment, decree or order binding on having jurisdiction over the Transferor or its properties or (iii) conflict with any of the provisions of its properties, or any material indenture, mortgage, contract agreement or other instrument to which the Transferor is a party or by which it the Transferor is bound or (iv) result in the creation or imposition of any lien, charge or encumbrance upon to which any of its property pursuant to the terms properties of any such indenturethe Transferor is subject, mortgage, contract or other instrument;
(h) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will constitute a legal, valid and binding agreement Articles of Association or Bylaws of the Transferor, enforceable against and the Transferor has full power and authority to authorize, issue and sell the Certificates as contemplated by this Agreement and the Transferor has full power and authority to enter into the Basic Documents to which it is a party.
(f) As of the Closing Date, the representations and warranties of the Transferor in accordance with its terms, except the Basic Documents to the extent that the enforceability thereof may which it is a party will be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter true and correct in effect relating to creditors' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity;all material respects.
(ig) all approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series pursuant to this Agreement, the applicable Terms Agreement, the Indenture and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Date;
(j) this This Agreement has been andduly authorized, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;.
(kh) The Transferor has authorized the Trust to issue and sell the Certificates.
(i) Wachovia Corporation (the "Company") has delivered to you complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Transferor for the three most recent years for which such reports are available, as submitted to the Comptroller of the Currency; except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Company since the last such report;
(j) The Company has delivered to you complete and correct copies of Form 10-Q for the first quarter of 2000 and Form 10-K for 1999. Except as set forth in or contemplated in a Registration Statement and the Prospectus, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise) of either the Transferor or the Company or the credit card business of the Company or its Affiliates since the date of the applicable Prospectus Supplement;information provided pursuant to the preceding sentence.
(lk) any Any taxes, fees and other governmental charges due and payable from or by the Transferor in connection with the execution, delivery and performance by of the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement Basic Documents and the Notes of the related Series Certificates and any other agreements contemplated therein shall have been paid or will be paid by or on behalf of the Transferor Transferor, at or prior to the applicable Delivery Closing Date to the extent then due; and.
(ml) the Notes The Certificates have been duly and validly authorized by all required action of the related SeriesBank, and, when duly and validly executed by the IndentureBank, authenticated by the applicable Indenture Supplement, Trustee and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for by the Collateral Series SupplementUnderwriters as provided herein, will be validly issued and outstanding and entitled to the Transfer benefits of the Pooling and Servicing Agreement. As of the Closing Date, the Purchase Agreement Certificates will have been duly and any applicable Enhancement Agreement validly executed by the Bank, and will conform in all material respects to the description descriptions thereof contained in the Prospectus.
(m) The Receivables conformed in all material respects with the description thereof contained in the Prospectus as of the dates specified therein.
(n) The Trust is not, and will not become as a result of the issuance and sale of the Certificates, subject to regulation as an "investment company" within the meaning of the Investment Company Act of 1940, as amended (the "1940 Act").
Appears in 1 contract
Samples: Underwriting Agreement (First National Bank of Atlanta)
Representations and Warranties of the Transferor. The Transferor represents and warrants to you each Underwriter as of the date hereof and to the Underwriters named in the applicable Terms Agreement as of the date of such Terms Agreementhereof, as follows:
(a) a registration statement on Form S-3 (having the registration number stated in the applicable Terms Agreement), 333-28811) including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the Notes and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the "Act"), Certificates has been filed with the Securities and Exchange Commission (the "Commission") (which may have included one or more a preliminary prospectuses and prospectus supplements (each, a the "Preliminary Prospectus") meeting the requirements of Rule 430 of the Securities Act as 1933, as amended (the "Act"), and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes Certificates offered thereby by the Transferor constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the "Rules and Regulations") under the Act), are respectively referred to herein as the "Registration Statement" and the "Prospectus"; provided, however, that a supplement to the Prospectus prepared pursuant to Section 5(a) hereof (each, a "Prospectus Supplement") shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms this Agreement, the Registration Statement and the Prospectus, except with respect to any modification to which you have agreed in writing, shall be in all substantive respects in the form furnished to you prior to such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to you) as the Transferor has advised you, prior to such time will be included or made therein;
(c) on the effective date of the Registration Statement, the Registration Statement and the Prospectus complied in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or, in the case of the Registration Statement, omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, in the case of the Prospectus, omit to state any material mate rial fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and on the date of each Terms Agreement hereof and on each Delivery the Closing Date (as defined in Section 3 hereof), the Registration Statement and the Prospectus will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents included or will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Transferor by any Underwriter specifically for use in connection with the preparation of the Registration Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly existing in good standing under the laws of the State of DelawareNevada, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders Certificateholders under the Master Indenture Pooling and Servicing Agreement or under any Indenture the Supplement;
(e) the Note Trust is a business trust duly organized Certificates, the Collateral Interest and validly existing in good standing under the laws of the State of Delaware, with full power, authority and legal right to own its properties and conduct its business as described in the Prospectus, is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary licenses and approvals (except with respect to the state securities or Blue Sky laws of various jurisdictions) in each jurisdiction in which failure to so qualify or obtain such licenses and approvals would have a material adverse effect on the interests of Noteholders under the Master Indenture or under any Indenture Supplement;
(f) the Notes of the related Series, Class D Certificates on the date of such Terms this Agreement, will have been duly and validly authorized and, when such Notes the Certificates and the Class D Certificates are at Closing duly and validly executed by or on behalf of the Note TrustTransferor, authenticated by the Indenture Trustee and delivered in accordance with the Master Indenture Pooling and Servicing Agreement and the applicable Indenture Supplement and, when the Certificates, the Collateral Interest and the Class D Certificates are delivered and paid for as provided herein, will be a legal, valid and binding obligation of the Note Trust, enforceable against the Note Trust in accordance with its terms, and validly issued and outstanding and entitled to the benefits and security afforded by the Master Indenture Pooling and Servicing Agreement and the applicable Indenture Supplement;
(gf) the execution, delivery and performance by the Transferor of this Agreement, each applicable Terms Agreement, any applicable agreement relating to an Enhancement (an "Enhancement Agreement"), the Pooling and Servicing Agreement, the Collateral Series SupplementSupplement and the Certificates, the Transfer and Servicing Agreement Collateral Interest and the Receivables Purchase Agreement, dated as of December 31, 2001 between FNANB, as seller, and the Transferor, as purchaser (as amended, supplemented or otherwise modified from time to time, the "Purchase Agreement")Class D Certificates, and the consummation by the Transferor of the transactions provided for herein and therein, have been, or will have been, duly authorized by the Transferor by all necessary corporate action on the part of the Transferor; and neither the execution and delivery by the Transferor of such instruments, nor the performance by the Transferor of the transactions herein or therein contemplated, nor the compliance by the Transferor with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the terms and provisions of, or constitute a default under, any of the provisions of the amended and restated articles or certificate of incorporation or by-laws of the Transferor, or (ii) conflict with any of the provisions of any law, government rule, regulation, judgment, decree or order binding on the Transferor or its properties or (iii) conflict with any of the provisions of any material indenture, mortgage, contract or other instrument to which the Transferor is a party or by which it is bound or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrumentinstrument other than pursuant to the Pooling and Servicing Agreement and the Supplement;
(hg) when executed and delivered by the parties thereto, the Pooling and Servicing Agreement, the Collateral Series Supplement, Supplement and the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement will each constitute a legal, valid and binding agreement of the Transferor, enforceable against the Transferor in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights in general as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Transferor or in the event of any moratorium or similar occurrence affecting the Transferor and to general principles of equity (whether considered in a proceeding at law or in equity);
(ih) all approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the foreign or state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes of a Series Certificates, the Collateral Interest and the Class D Certificates pursuant to this Agreement, the applicable Terms Enhancement Agreement, the Indenture Pooling and Servicing Agreement and the applicable Indenture Supplement, have been or will be taken or obtained on or prior to the applicable Delivery Closing Date;
(ji) this Agreement has been and, as of the date thereof, the applicable Terms Agreement will have been duly executed and delivered by the Transferor;
(kj) except as set forth in or contemplated in the Registration Statement and the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Transferor since the date of the applicable Prospectus SupplementMay 2, 1997;
(lk) any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Transferor of this Agreement, the applicable Terms Agreement, the Indenture, the applicable Indenture Supplement, the Pooling and Servicing Agreement, the Collateral Series Supplement, the Transfer and Servicing Agreement, the Purchase Agreement, any applicable Enhancement Agreement and the Notes of the related Series Certificates shall have been paid or will be paid by or on behalf of the Transferor at or prior to the applicable Delivery Closing Date to the extent then due; and
(ml) the Notes of the related SeriesCertificates, the IndentureCollateral Interest, the applicable Indenture SupplementClass D Certificates, the Pooling and Servicing Agreement, the Collateral Series Supplement, Supplement and the Transfer and Servicing Agreement, the Purchase Agreement and any applicable Enhancement Agreement conform in all material respects to the description thereof in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Proffitts Credit Card Master Trust)
