Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, represents and warrants to and agrees with the Underwriters as follows: (a) The Bank (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement to which it shall be a party. (b) The Receivables Purchase Agreement to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Prospectus. (c) This Agreement has been duly and validly authorized, executed and delivered by the Bank. (d) Other than as set forth or contemplated in the Preliminary Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement to which it is a party. (e) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement to which it is a party (individually and in the aggregate) will be true and correct in all material respects. (f) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement to which it is a party or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables. (g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). (h) The Bank agrees it has not granted, assigned, pledged or transferred and shall not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the Receivables made pursuant to the Receivables Purchase Agreement. (i) Neither the transfer of the Receivables under the Receivables Purchase Agreement to which the Bank is a party nor the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of any of the transactions herein or therein contemplated, nor the fulfillment of the terms of any Transaction Document or this Agreement, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party. (j) The Bank has not engaged or caused any other person to engage, nor will the Bank engage or cause any other person to engage prior to the Closing Date, any third-party to provide “due diligence services” as defined in Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or the transactions contemplated by this Agreement. (k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction in accordance with the final rules implementing the credit risk retention requirements of Section 15G of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interest.
Appears in 12 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and the Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party, the consummation of the Retained Notes Transaction or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(gf) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(h) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the applicable Receivables Purchase Agreement, and agrees to take all action required by the such Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the such Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(jh) The Bank has not engaged or caused any other person complied, and will continue to engagecomply, nor will the Bank engage or cause any other person to engage prior to the Closing Date, any third-party to provide “due diligence services” as defined in Rule 17g-10(d)(1) under the Exchange Act in connection with the offering 17g-5 Representation, other than any breach of the Certificates 17g-5 Representation that would not have a material adverse effect on the Notes or obtained any third-party due diligence report within breach of the meaning 17g-5 Representation arising from a breach by any of Rule 15Ga-2(dthe Underwriters of the representation, warranty and covenant set forth in Section 4.
(i) under the Exchange Act No Early Amortization Event, and no event that would become an Early Amortization Event after any applicable grace period has elapsed, exists with respect to the assets held any outstanding Series of notes issued by the Trust or Issuer and no event has occurred that would constitute (after the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction in accordance with the final rules implementing the credit risk retention requirements of Section 15G of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing issuance of such retained interestnotes) an Early Amortization Event or would become an Early Amortization Event after any applicable grace period has elapsed.
Appears in 10 contracts
Samples: Underwriting Agreement (Barclays Dryrock Issuance Trust), Underwriting Agreement (Barclays Dryrock Funding LLC), Underwriting Agreement (Barclays Bank Delaware)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, represents and warrants to and agrees with the Underwriters as follows:
(a) The Bank (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement to which it shall be a party.
(b) The Receivables Purchase Agreement to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement to which it is a party.
(e) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement to which it is a party (individually and in the aggregate) will be true and correct in all material respects.
(f) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement to which it is a party or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(h) The Bank agrees it has not granted, assigned, pledged or transferred and shall not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the Receivables made pursuant to the Receivables Purchase Agreement.
(i) Neither the transfer of the Receivables under the Receivables Purchase Agreement to which the Bank is a party nor the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of any of the transactions herein or therein contemplated, nor the fulfillment of the terms of any Transaction Document or this Agreement, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(j) The Bank has not engaged or caused any other person to engage, nor will the Bank engage or cause any other person to engage prior to the Closing Date, any third-party to provide “due diligence services” as defined in Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Class A Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction in accordance with the final rules implementing the credit risk retention requirements of Section 15G of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interest.
Appears in 6 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and the Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party, the consummation of the Retained Notes Transaction or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(jh) The Bank has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not engaged have a material adverse effect on the Notes or caused any other person breach of the 17g-5 Representation arising from a breach by any of the Underwriters of the representation, warranty and covenant set forth in Section 4.
(i) No Early Amortization Event, and no event that would become an Early Amortization Event after any applicable grace period has elapsed, exists with respect to engage, nor will any outstanding Series of notes issued by the Issuer and no event has occurred that would constitute (after the issuance of such notes) an Early Amortization Event or would become an Early Amortization Event after any applicable grace period has elapsed.
(j) Neither the Bank engage or cause nor any other person to engage prior of its respective affiliates, has engaged, and from the date of this Agreement to the Closing Date, will engage, any third-party to provide “due diligence services” as defined in services within the meaning of Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction Issuer in accordance connection with the final rules implementing the credit risk retention requirements of Section 15G issuance and offering of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interestUnderwritten Notes.
Appears in 2 contracts
Samples: Underwriting Agreement (Barclays Dryrock Funding LLC), Underwriting Agreement (Barclays Dryrock Issuance Trust)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, represents and warrants to and agrees with the Underwriters as follows:
(a) The Bank (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualificationqualification (except where the failure to be so qualified could not, individually or in the aggregate, have a material adverse effect on the financial condition, results of operations or business of the Bank), and (iii) has full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement to which it shall be a partyAgreement.
(b) The Receivables Purchase Agreement to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, fraudulent conveyance, reorganization, insolvency insolvency, moratorium and similar laws affecting or relating to creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement enforceability is pursuant to considered in a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus, to the best knowledge of the Bank, there are no charges, investigations, material actions, suits, claims suits or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, or threatened that, separately individually or in the aggregate, would (i) would reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement to which it is a partyAgreement.
(e) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement to which it is a party (individually and in the aggregate) will be true and correct in all material respects.
(f) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement to which it is a party or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(h) The Bank agrees it has not granted, assigned, pledged or transferred and shall not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the Receivables made pursuant to the Receivables Purchase Agreement.
(i) Neither the transfer of the Receivables under the Receivables Purchase Agreement to which the Bank is a party nor the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of any of the transactions herein or therein contemplated, nor the fulfillment of the terms of any Transaction Document or this Agreement, will result in (i) the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected affected, (ii) to the best knowledge of the Transferor, the breach of any term or provision of any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in (iii) the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document), except, in the case of (ii) and (iii), where such conflict, breach or creation of any Lien would not, individually or in the aggregate, have a material adverse effect on the financial condition, results of operations or business of the Bank. The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(j) The Bank has not engaged or caused any other person to engage, nor will the Bank engage or cause any other person to engage prior to the Closing Date, any third-party to provide “due diligence services” as defined in Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Class A Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction in accordance with the final rules implementing the credit risk retention requirements of Section 15G of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interest.
Appears in 2 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, represents and warrants to and agrees with the Underwriters as follows:
(a) The Bank (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement to which it shall be a party.
(b) The Receivables Purchase Agreement to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement to which it is a party.
(e) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement to which it is a party (individually and in the aggregate) will be true and correct in all material respects.
(f) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement to which it is a party or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(h) The Bank agrees it has not granted, assigned, pledged or transferred and shall not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the Receivables made pursuant to the Receivables Purchase Agreement.
(i) Neither the transfer of the Receivables under the Receivables Purchase Agreement to which the Bank is a party nor the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of any of the transactions herein or therein contemplated, nor the fulfillment of the terms of any Transaction Document or this Agreement, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(j) The Bank has not engaged or caused any other person to engage, nor will the Bank engage or cause any other person to engage prior to the Closing Date, any third-party to provide “due diligence services” as defined in Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Class A Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d15Ga -2(d) under the Exchange Act with respect to the assets held by the Trust or the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction in accordance with the final rules implementing the credit risk retention requirements of Section 15G of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interest.
Appears in 2 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and, as will be set forth or contemplated in the Final Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party, the consummation of the Retained Notes Transaction or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(jh) The Bank has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not engaged have a material adverse effect on the Notes or caused any other person breach of the 17g-5 Representation arising from a breach by any of the Underwriters of the representation, warranty and covenant set forth in Section 4.
(i) No Early Amortization Event, and no event that would become an Early Amortization Event after any applicable grace period has elapsed, exists with respect to engage, nor will any outstanding Series of notes issued by the Issuer and no event has occurred that would constitute (after the issuance of such notes) an Early Amortization Event or would become an Early Amortization Event after any applicable grace period has elapsed.
(j) Neither the Bank engage or cause nor any other person to engage prior of its respective affiliates, has engaged, and from the date of this Agreement to the Closing Date, will engage, any third-party to provide “due diligence services” as defined in services within the meaning of Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or Issuer in connection with the transactions contemplated by this Agreementissuance and offering of the Underwritten Notes.
(k) The Bank is the appropriate entity to comply with all of the requirements imposed on sponsors the sponsor of a securitization transaction in accordance with the final rules contained in Regulation RR, 17 C.F.R. § 246.1, et seq. (the “Credit Risk Retention Rules”), implementing the credit risk retention requirements of Section 15G of the Exchange Act (Act. The Bank does comply, as of the “date hereof, and will comply, for so long as the Credit Risk Retention Rules”)Rules are applicable, either directly or (to the extent permitted by in all material respects with the Credit Risk Retention Rules) , including the disclosure requirements thereof, through one or more a “wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates affiliate” (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining including causing such wholly-owned affiliate to maintain a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, for the duration required by the Credit Risk Retention Rules, without any impermissible transferhedging, hedging transfer or financing of such retained interest.
Appears in 2 contracts
Samples: Underwriting Agreement (Barclays Dryrock Issuance Trust), Underwriting Agreement (Barclays Dryrock Issuance Trust)
Representations, Warranties and Agreements of the Bank. The BankBank represents, as to and for itself only, represents and warrants to and agrees with the Underwriters as followsthat:
(a) The Bank (i) is duly organized, validly existing and in good standing a state chartered bank under the laws of the jurisdiction Commonwealth of Pennsylvania with the corporate power and authority necessary to own or hold its properties and to conduct its business in which it is organized, (ii) is qualified to transact business inengaged, and is duly qualified to do business and in good standing under, the laws of as a foreign corporation or other business entity in each jurisdiction in which its activities require ownership or lease of property or the conduct of its businesses requires such qualification, and (iii) has full powerexcept where the failure to be so qualified or in good standing would not reasonably be expected, authority and legal right individually or in the aggregate, to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to executehave a Material Adverse Effect, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement to which it shall be a partycharter of the Bank is in full force and effect.
(b) The Receivables Purchase Agreement Bank is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound or to which any of the property or assets of the Bank is subject except for such defaults that would not be expected to result in a Material Adverse Effect.
(c) The deposit accounts of the Bank are insured by the FDIC to the fullest extent permitted by the Federal Deposit Insurance Act, as amended, 12 U.S.C. 1811 et seq., and the rules and regulations of the FDIC thereunder, and all premiums and assessments required to be paid in connection therewith have been paid when due (after giving effect to any applicable extensions), and no proceeding for the modification, termination or revocation of such insurance are pending or, to the knowledge of the Bank, threatened. The Bank is the only depository institution subsidiary of the Company and the Bank is a party member in good standing of the Federal Home Loan Bank System.
(d) The Bank has received an overall Community Reinvestment Act (“CRA”) rating of at least “Satisfactory” and has not been informed in writing by any Regulatory Authority that it may receive a less than “Satisfactory” rating for CRA purposes within one year, nor, to the Bank’s knowledge, has the Bank been informed other than in writing by any Regulatory Authority that it may receive a less than “Satisfactory” rating for CRA purposes within one year. The Bank is not aware of any facts or circumstances that exist that would cause the Bank to be (i) not in satisfactory compliance in any material respect with the CRA, and the regulations promulgated thereunder, or to be assigned a CRA rating by federal or state bank regulators of lower than “Satisfactory,” or (ii) not in material compliance with the privacy of customer information requirements contained in any federal and state privacy laws and regulations applicable to the Bank, including, without limitation, in Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 and regulations promulgated thereunder, as well as the provisions of the information security program adopted by the Bank, pursuant to 12 C.F.R. Part 364.
(e) This Agreement has been duly authorized, executed and delivered by the BankBank and, and assuming the due authorization, execution and delivery thereof when duly executed by the other parties theretoUnderwriter, will constitute the Receivables Purchase Agreement constitutes valid and binding obligations agreement of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, insolvency and moratorium or other similar laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by general equitable principles and except as any court, regulatory body, administrative agency, governmental body indemnification or arbitrator now pending or, contribution provisions thereof may be limited under applicable securities laws and banking laws. The Bank has the full power and authority to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under enter into this Agreement or the Receivables Purchase Agreement to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement to which it is a party.
(e) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement to which it is a party (individually and in the aggregate) will be true and correct in all material respectsAgreement.
(f) No consent, approval, authorization, order, registration or qualification The execution and delivery of or with any court or governmental agency or body is required for this Agreement by the execution, delivery Bank and the compliance and performance by the Bank of, or with the compliance by the Bank with, provisions of this Agreement or the Receivables Purchase Agreement to which it is a party or and the consummation of the transactions herein contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, duly authorized by all necessary corporate action on the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation part of the Servicer enforceable against Bank and do not and will not, whether with or without the Servicer giving of notice or passage or time or both, conflict with or result in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity breach or at law).
(h) The Bank agrees it has not granted, assigned, pledged or transferred and shall not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the Receivables made pursuant to the Receivables Purchase Agreement.
(i) Neither the transfer of the Receivables under the Receivables Purchase Agreement to which the Bank is a party nor the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation violation of any of the transactions herein terms or therein contemplated, nor the fulfillment of the terms of any Transaction Document or this Agreement, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration provisions of, or constitute a default or result in a right to require the repurchase, redemption or repayment of all or a portion of indebtedness by the Bank prior to its scheduled maturity under, the terms any indenture, mortgage, deed of any material indenture trust, loan agreement or other agreement or instrument to which the Bank or any of its subsidiaries is a party or by which it the Bank or any of its properties subsidiaries is bound or may be affected to which any of the property or assets of the Bank or any material statuteof its subsidiaries is subject, order nor will such action result in any violation of the provisions of the articles of incorporation or bylaws of the Bank or any statute or any order, rule or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator Regulatory Authority having jurisdiction over the Bank or will any of its subsidiaries or any of their properties, except for those conflicts, breaches, violations, defaults or repurchase rights that would not result in the creation of a Material Adverse Effect. Any certificate signed by any Lien upon any property or assets officer of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(j) The Bank has not engaged or caused any other person to engage, nor will the Bank engage or cause any other person to engage prior delivered to the Closing Date, any third-party to provide “due diligence services” as defined in Rule 17g-10(d)(1) under Representatives or counsel for the Exchange Act Underwriters in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held this Agreement shall be deemed a representation and warranty by the Trust or the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction in accordance with the final rules implementing the credit risk retention requirements of Section 15G of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules)to matters covered thereby, satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interestto each Underwriter.
Appears in 1 contract
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its 8 Underwriting Agreement-Series 2019-1 terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and, as will be set forth or contemplated in the Final Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party, the consummation of the Retained Notes Transaction or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body 9 Underwriting Agreement-Series 2019-1 or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(jh) The Bank has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not engaged have a material adverse effect on the Notes or caused any other person breach of the 17g-5 Representation arising from a breach by any of the Underwriters of the representation, warranty and covenant set forth in Section 4.
(i) No Early Amortization Event, and no event that would become an Early Amortization Event after any applicable grace period has elapsed, exists with respect to engage, nor will any outstanding Series of notes issued by the Issuer and no event has occurred that would constitute (after the issuance of such notes) an Early Amortization Event or would become an Early Amortization Event after any applicable grace period has elapsed.
(j) Neither the Bank engage or cause nor any other person to engage prior of its respective affiliates, has engaged, and from the date of this Agreement to the Closing Date, will engage, any third-party to provide “due diligence services” as defined in services within the meaning of Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or Issuer in connection with the transactions contemplated by this Agreementissuance and offering of the Underwritten Notes.
(k) The Bank is the appropriate entity to comply with all of the requirements imposed on sponsors the sponsor of a securitization transaction in accordance with the final rules contained in Regulation RR, 17 C.F.R. § 246.1, et seq. (the “Credit Risk Retention Rules”), implementing the credit risk retention requirements of Section 15G of the Exchange Act (Act. The Bank does comply, as of the “date hereof, and will comply, for so long as the Credit Risk Retention Rules”)Rules are applicable, either directly or (to the extent permitted by in all material respects with the Credit Risk Retention Rules) , including the disclosure requirements thereof, through one or more a “wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates affiliate” (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining including causing such wholly-owned affiliate to maintain a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, for the duration required by the Credit Risk Retention Rules, without any impermissible transferhedging, hedging transfer or financing of such retained interest.
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Issuance Trust)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and the Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party, the consummation of the Retained Notes Transaction or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(jh) The Bank has not engaged or caused any other person complied, and will continue to engagecomply, nor will the Bank engage or cause any other person to engage prior to the Closing Date, any third-party to provide “due diligence services” as defined in Rule 17g-10(d)(1) under the Exchange Act in connection with the offering 17g-5 Representation, other than any breach of the Certificates 17g-5 Representation that would not have a material adverse effect on the Notes or obtained any third-party due diligence report within breach of the meaning 17g-5 Representation arising from a breach by any of Rule 15Ga-2(dthe Underwriters of the representation, warranty and covenant set forth in Section 4.
(i) under the Exchange Act No Early Amortization Event, and no event that would become an Early Amortization Event after any applicable grace period has elapsed, exists with respect to the assets held any outstanding Series of notes issued by the Trust or Issuer and no event has occurred that would constitute (after the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction in accordance with the final rules implementing the credit risk retention requirements of Section 15G of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing issuance of such retained interestnotes) an Early Amortization Event or would become an Early Amortization Event after any applicable grace period has elapsed.
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Issuance Trust)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting 8 Underwriting Agreement-Series 2023-2 creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and, as will be set forth or contemplated in the Final Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party, the consummation of the Retained Notes Transaction or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any 9 Underwriting Agreement-Series 2023-2 property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(jh) The Bank has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not engaged have a material adverse effect on the Notes or caused any other person breach of the 17g-5 Representation arising from a breach by any of the Underwriters of the representation, warranty and covenant set forth in Section 4.
(i) No Early Amortization Event, and no event that would become an Early Amortization Event after any applicable grace period has elapsed, exists with respect to engage, nor will any outstanding Series of notes issued by the Issuer and no event has occurred that would constitute (after the issuance of such notes) an Early Amortization Event or would become an Early Amortization Event after any applicable grace period has elapsed.
(j) Neither the Bank engage or cause nor any other person to engage prior of its respective affiliates, has engaged, and from the date of this Agreement to the Closing Date, will engage, any third-party to provide “due diligence services” as defined in services within the meaning of Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or Issuer in connection with the transactions contemplated by this Agreementissuance and offering of the Underwritten Notes.
(k) The Bank is the appropriate entity to comply with all of the requirements imposed on sponsors the sponsor of a securitization transaction in accordance with the final rules contained in Regulation RR, 17 C.F.R. § 246.1, et seq. (the “Credit Risk Retention Rules”), implementing the credit risk retention requirements of Section 15G of the Exchange Act (Act. The Bank does comply, as of the “date hereof, and will comply, for so long as the Credit Risk Retention Rules”)Rules are applicable, either directly or (to the extent permitted by in all material respects with the Credit Risk Retention Rules) , including the disclosure requirements thereof, through one or more a “wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates affiliate” (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining including causing such wholly-owned affiliate to maintain a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, for the duration required by the Credit Risk Retention Rules, without any impermissible transferhedging, hedging transfer or financing of such retained interest.
(l) None of the Bank, the Issuer, the Transferor, any of their subsidiaries, any of their respective directors or officers or, to the knowledge of the Bank or the Transferor, any of their respective agents, employees or other persons acting on behalf of such relevant entity is a Person that is, or is owned 50 percent or more, directly or indirectly, or controlled by one or more Persons that are: (i) the subject of any economic or trade sanctions or restrictive measures enacted, administered, imposed or enforced by the U.S. Department of the Treasury's Office of Foreign Assets Control, the U.S. Department of State, the European Union, Her Majesty’s Treasury or any other applicable sanctions authority (collectively, “Sanctions”), including any 10 Underwriting Agreement-Series 2023-2 person, entity or body listed on any Sanctions-related list of designated Persons maintained by any such authority, or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions broadly prohibiting dealings with such government, country, or territory, including, but not limited to, Afghanistan, Cuba, Iran, North Korea, Syria, the Crimea Region of the Ukraine, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic. None of the Bank, the Issuer or the Transferor will directly or indirectly use the proceeds of the offering or sale of any Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (i) to fund any activities of or business with any Person that, at the time of such funding, is the subject or target of Sanctions, (ii) to fund or facilitate any activities in any country or territory that is subject to or the target of Sanctions, or (iii) in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(m) The operations of the Bank, the Issuer and the Transferor and their subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the money laundering statutes of all applicable jurisdictions and the rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any of the Bank, the Issuer and the Transferor with respect to Money Laundering Laws is pending or, to the knowledge of the Bank or the Transferor, threatened.
(n) None of the Bank, the Issuer, the Transferor, any of their subsidiaries, any of their respective directors or officers, or, to the knowledge of the Bank or the Transferor, any of their respective managers, members, agents, employees, or other persons acting on behalf of the Bank, the Issuer or the Transferor, has (A) made any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (B) made any direct or, to the knowledge of the Issuer or the Transferor, indirect unlawful payment to any domestic governmental official or “foreign official” (as defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”)) or domestic government or foreign government employee; (C) violated or is in violation of any provision of the FCPA, any applicable law or regulation implementing the Organisation for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Bribery Act of 2010 of the United Kingdom or any applicable non-U.S. anti-corruption laws; (D) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (E) received notice of any investigation, proceeding or inquiry by any governmental agency, authority or body regarding any of the matters in clauses (A)-(D) above.
(o) The Bank has instituted and maintains policies reasonably designed to ensure compliance with all applicable Sanctions, all applicable Money Laundering Laws, the FCPA and all other applicable anti-corruption laws.
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Funding LLC)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and, as will be set forth or contemplated in the Final Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a 8 Underwriting Agreement-Series 20[_]-[_] material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party[, the consummation of the Retained Notes Transaction] or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(jh) The Bank has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not engaged have a material adverse effect on the Notes or caused any other person breach of the 17g-5 Representation arising from a breach by any of the Underwriters of the representation, warranty and covenant set forth in Section 4. 9 Underwriting Agreement-Series 20[_]-[_]
(i) No Early Amortization Event, and no event that would become an Early Amortization Event after any applicable grace period has elapsed, exists with respect to engage, nor will any outstanding Series of notes issued by the Issuer and no event has occurred that would constitute (after the issuance of such notes) an Early Amortization Event or would become an Early Amortization Event after any applicable grace period has elapsed.
(j) Neither the Bank engage or cause nor any other person to engage prior of its respective affiliates, has engaged, and from the date of this Agreement to the Closing Date, will engage, any third-party to provide “due diligence services” as defined in services within the meaning of Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or Issuer in connection with the transactions contemplated by this Agreementissuance and offering of the Underwritten Notes.
(k) The Bank is the appropriate entity to comply with all of the requirements imposed on sponsors the sponsor of a securitization transaction in accordance with the final rules contained in Regulation RR, 17 C.F.R. § 246.1, et seq. (the “Credit Risk Retention Rules”), implementing the credit risk retention requirements of Section 15G of the Exchange Act (Act. The Bank does comply, as of the “date hereof, and will comply, for so long as the Credit Risk Retention Rules”)Rules are applicable, either directly or (to the extent permitted by in all material respects with the Credit Risk Retention Rules) , including the disclosure requirements thereof, through one or more a “wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates affiliate” (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining including causing such wholly-owned affiliate to maintain a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, for the duration required by the Credit Risk Retention Rules, without any impermissible transferhedging, hedging transfer or financing of such retained interest.
(l) None of the Bank, the Issuer, the Transferor, any of their subsidiaries, any of their respective directors or officers or, to the knowledge of the Bank or the Transferor, any of their respective agents, employees or other persons acting on behalf of such relevant entity is a Person that is, or is owned 50 percent or more, directly or indirectly, or controlled by one or more Persons that are: (i) the subject of any economic or trade sanctions or restrictive measures enacted, administered, imposed or enforced by the U.S. Department of the Treasury's Office of Foreign Assets Control, the U.S. Department of State, the European Union, Her Majesty’s Treasury or any other applicable sanctions authority (collectively, “Sanctions”), including any person, entity or body listed on any Sanctions-related list of designated Persons maintained by any such authority, or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions broadly prohibiting dealings with such government, country, or territory, including, but not limited to, Afghanistan, Cuba, Iran, North Korea, Syria, the Crimea Region of the Ukraine, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic. None of the Bank, the Issuer or the Transferor will directly or indirectly use the proceeds of the offering or sale of any Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (i) to fund any activities of or business with any Person that, at the time of such funding, is the subject or target of Sanctions, (ii) to fund or facilitate any activities in any country or territory that is subject to or the target of Sanctions, or (iii) in any other manner that will result in a violation by any Person (including any Person 10 Underwriting Agreement-Series 20[_]-[_] participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(m) The operations of the Bank, the Issuer and the Transferor and their subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the money laundering statutes of all applicable jurisdictions and the rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any of the Bank, the Issuer and the Transferor with respect to Money Laundering Laws is pending or, to the knowledge of the Bank or the Transferor, threatened.
(n) None of the Bank, the Issuer, the Transferor, any of their subsidiaries, any of their respective directors or officers, or, to the knowledge of the Bank or the Transferor, any of their respective managers, members, agents, employees, or other persons acting on behalf of the Bank, the Issuer or the Transferor, has (A) made any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (B) made any direct or, to the knowledge of the Issuer or the Transferor, indirect unlawful payment to any domestic governmental official or “foreign official” (as defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”)) or domestic government or foreign government employee; (C) violated or is in violation of any provision of the FCPA, any applicable law or regulation implementing the Organisation for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Bribery Act of 2010 of the United Kingdom or any applicable non-U.S. anti-corruption laws; (D) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (E) received notice of any investigation, proceeding or inquiry by any governmental agency, authority or body regarding any of the matters in clauses (A)-(D) above.
(o) The Bank has instituted and maintains policies reasonably designed to ensure compliance with all applicable Sanctions, all applicable Money Laundering Laws, the FCPA and all other applicable anti-corruption laws.
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Funding LLC)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and, as will be set forth or contemplated in the Final Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party[, the consummation of the Retained Notes Transaction] or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(jh) The Bank has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not engaged have a material adverse effect on the Notes or caused any other person breach of the 17g-5 Representation arising from a breach by any of the Underwriters of the representation, warranty and covenant set forth in Section 4.
(i) No Early Amortization Event, and no event that would become an Early Amortization Event after any applicable grace period has elapsed, exists with respect to engage, nor will any outstanding Series of notes issued by the Issuer and no event has occurred that would constitute (after the issuance of such notes) an Early Amortization Event or would become an Early Amortization Event after any applicable grace period has elapsed.
(j) Neither the Bank engage or cause nor any other person to engage prior of its respective affiliates, has engaged, and from the date of this Agreement to the Closing Date, will engage, any third-party to provide “due diligence services” as defined in services within the meaning of Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or Issuer in connection with the transactions contemplated by this Agreementissuance and offering of the Underwritten Notes.
(k) The Bank is the appropriate entity to comply with all of the requirements imposed on sponsors the sponsor of a securitization transaction in accordance with the final rules contained in Regulation RR, 17 C.F.R. § 246.1, et seq. (the “Credit Risk Retention Rules”), implementing the credit risk retention requirements of Section 15G of the Exchange Act (Act. The Bank does comply, as of the “date hereof, and will comply, for so long as the Credit Risk Retention Rules”)Rules are applicable, either directly or (to the extent permitted by in all material respects with the Credit Risk Retention Rules) , including the disclosure requirements thereof, through one or more a “wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates affiliate” (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining including causing such wholly-owned affiliate to maintain a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, for the duration required by the Credit Risk Retention Rules, without any impermissible transferhedging, hedging transfer or financing of such retained interest.
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Funding LLC)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and, as will be set forth or contemplated in the Final Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party, the consummation of the Retained Notes Transaction or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(jh) The Bank has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not engaged have a material adverse effect on the Notes or caused any other person breach of the 17g-5 Representation arising from a breach by any of the Underwriters of the representation, warranty and covenant set forth in Section 4.
(i) No Early Amortization Event, and no event that would become an Early Amortization Event after any applicable grace period has elapsed, exists with respect to engage, nor will any outstanding Series of notes issued by the Issuer and no event has occurred that would constitute (after the issuance of such notes) an Early Amortization Event or would become an Early Amortization Event after any applicable grace period has elapsed.
(j) Neither the Bank engage or cause nor any other person to engage prior of its respective affiliates, has engaged, and from the date of this Agreement to the Closing Date, will engage, any third-party to provide “due diligence services” as defined in services within the meaning of Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction Issuer in accordance connection with the final rules implementing the credit risk retention requirements of Section 15G issuance and offering of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interestUnderwritten Notes.
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Issuance Trust)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether 8 Underwriting Agreement-Series 2023-1 enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and, as will be set forth or contemplated in the Final Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party, the consummation of the Retained Notes Transaction or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, 9 Underwriting Agreement-Series 2023-1 governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(jh) The Bank has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not engaged have a material adverse effect on the Notes or caused any other person breach of the 17g-5 Representation arising from a breach by any of the Underwriters of the representation, warranty and covenant set forth in Section 4.
(i) No Early Amortization Event, and no event that would become an Early Amortization Event after any applicable grace period has elapsed, exists with respect to engage, nor will any outstanding Series of notes issued by the Issuer and no event has occurred that would constitute (after the issuance of such notes) an Early Amortization Event or would become an Early Amortization Event after any applicable grace period has elapsed.
(j) Neither the Bank engage or cause nor any other person to engage prior of its respective affiliates, has engaged, and from the date of this Agreement to the Closing Date, will engage, any third-party to provide “due diligence services” as defined in services within the meaning of Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or Issuer in connection with the transactions contemplated by this Agreementissuance and offering of the Underwritten Notes.
(k) The Bank is the appropriate entity to comply with all of the requirements imposed on sponsors the sponsor of a securitization transaction in accordance with the final rules contained in Regulation RR, 17 C.F.R. § 246.1, et seq. (the “Credit Risk Retention Rules”), implementing the credit risk retention requirements of Section 15G of the Exchange Act (Act. The Bank does comply, as of the “date hereof, and will comply, for so long as the Credit Risk Retention Rules”)Rules are applicable, either directly or (to the extent permitted by in all material respects with the Credit Risk Retention Rules) , including the disclosure requirements thereof, through one or more a “wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates affiliate” (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining including causing such wholly-owned affiliate to maintain a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, for the duration required by the Credit Risk Retention Rules, without any impermissible transferhedging, hedging transfer or financing of such retained interest.
(l) None of the Bank, the Issuer, the Transferor, any of their subsidiaries, any of their respective directors or officers or, to the knowledge of the Bank or the Transferor, any of their respective agents, employees or other persons acting on behalf of such relevant entity is a Person that is, or is owned 50 percent or more, directly or indirectly, or controlled by one or more Persons that are: (i) the subject of any economic or trade sanctions or restrictive measures enacted, administered, imposed or enforced by the U.S. Department of the Treasury's Office of Foreign Assets Control, the U.S. Department of State, the European Union, Her Majesty’s Treasury or any other applicable sanctions authority (collectively, “Sanctions”), including any person, entity or body listed on any Sanctions-related list of designated Persons maintained by any such authority, or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions broadly prohibiting dealings with such government, country, or territory, including, but not limited to, Afghanistan, Cuba, Iran, North Korea, Syria, the Crimea Region of 10 Underwriting Agreement-Series 2023-1 the Ukraine, the so-called Donetsk People’s Republic and the so-called Luhansk People’s Republic. None of the Bank, the Issuer or the Transferor will directly or indirectly use the proceeds of the offering or sale of any Notes, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (i) to fund any activities of or business with any Person that, at the time of such funding, is the subject or target of Sanctions, (ii) to fund or facilitate any activities in any country or territory that is subject to or the target of Sanctions, or (iii) in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(m) The operations of the Bank, the Issuer and the Transferor and their subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the money laundering statutes of all applicable jurisdictions and the rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any of the Bank, the Issuer and the Transferor with respect to Money Laundering Laws is pending or, to the knowledge of the Bank or the Transferor, threatened.
(n) None of the Bank, the Issuer, the Transferor, any of their subsidiaries, any of their respective directors or officers, or, to the knowledge of the Bank or the Transferor, any of their respective managers, members, agents, employees, or other persons acting on behalf of the Bank, the Issuer or the Transferor, has (A) made any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (B) made any direct or, to the knowledge of the Issuer or the Transferor, indirect unlawful payment to any domestic governmental official or “foreign official” (as defined in the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”)) or domestic government or foreign government employee; (C) violated or is in violation of any provision of the FCPA, any applicable law or regulation implementing the Organisation for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Bribery Act of 2010 of the United Kingdom or any applicable non-U.S. anti-corruption laws; (D) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (E) received notice of any investigation, proceeding or inquiry by any governmental agency, authority or body regarding any of the matters in clauses (A)-(D) above.
(o) The Bank has instituted and maintains policies reasonably designed to ensure compliance with all applicable Sanctions, all applicable Money Laundering Laws, the FCPA and all other applicable anti-corruption laws.
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Funding LLC)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, represents and warrants to and agrees with the Underwriters as follows:
(a) The Bank (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualificationqualification (except where the failure to be so qualified could not, individually or in the aggregate, have a material adverse effect on the financial condition, results of operations or business of the Bank), and (iii) has full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement to which it shall be a partyAgreement.
(b) The Receivables Purchase Agreement to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, fraudulent conveyance, reorganization, insolvency insolvency, moratorium and similar laws affecting or relating to creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement enforceability is pursuant to considered in a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus, to the best knowledge of the Bank, there are no charges, investigations, material actions, suits, claims suits or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, or threatened that, separately individually or in the aggregate, would (i) would reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement to which it is a partyAgreement.
(e) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement to which it is a party (individually and in the aggregate) will be true and correct in all material respects.
(f) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement to which it is a party or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(h) The Bank agrees it has not granted, assigned, pledged or transferred and shall not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the Receivables made pursuant to the Receivables Purchase Agreement.
(i) Neither the transfer of the Receivables under the Receivables Purchase Agreement to which the Bank is a party nor the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of any of the transactions herein or therein contemplated, nor the fulfillment of the terms of any Transaction Document or this Agreement, will result in (i) the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected affected, (ii) to the best knowledge of the Transferor, the breach of any term or provision of any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in (iii) the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document), except, in the case of (ii) and (iii), where such conflict, breach or creation of any Lien would not, individually or in the aggregate, have a material adverse effect on the financial condition, results of operations or business of the Bank. The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(j) The Bank has not engaged or caused any other person to engage, nor will the Bank engage or cause any other person to engage prior to the Closing Date, any third-party to provide “due diligence services” as defined in Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Class A Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d15Ga -2(d) under the Exchange Act with respect to the assets held by the Trust or the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction in accordance with the final rules implementing the credit risk retention requirements of Section 15G of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interest.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and the Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party[, the consummation of the Retained Notes Transaction] or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor [the consummation of the Retained Notes Transaction,] the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(jh) The Bank has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not engaged have a material adverse effect on the Notes or caused any other person breach of the 17g-5 Representation arising from a breach by any of the Underwriters of the representation, warranty and covenant set forth in Section 4.
(i) No Early Amortization Event, and no event that would become an Early Amortization Event after any applicable grace period has elapsed, exists with respect to engage, nor will any outstanding Series of notes issued by the Issuer and no event has occurred that would constitute (after the issuance of such notes) an Early Amortization Event or would become an Early Amortization Event after any applicable grace period has elapsed.
(j) Neither the Bank engage or cause nor any other person to engage prior of its respective affiliates, has engaged, and from the date of this Agreement to the Closing Date, will engage, any third-party to provide “due diligence services” as defined in services within the meaning of Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction Issuer in accordance connection with the final rules implementing the credit risk retention requirements of Section 15G issuance and offering of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interestUnderwritten Notes.
Appears in 1 contract
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and, as will be set forth or contemplated in the Final Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party, the consummation of the Retained Notes Transaction or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(jh) The Bank has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not engaged have a material adverse effect on the Notes or caused any other person breach of the 17g-5 Representation arising from a breach by any of the Underwriters of the representation, warranty and covenant set forth in Section 4.
(i) No Early Amortization Event, and no event that would become an Early Amortization Event after any applicable grace period has elapsed, exists with respect to engage, nor will any outstanding Series of notes issued by the Issuer and no event has occurred that would constitute (after the issuance of such notes) an Early Amortization Event or would become an Early Amortization Event after any applicable grace period has elapsed.
(j) Neither the Bank engage or cause nor any other person to engage prior of its respective affiliates, has engaged, and from the date of this Agreement to the Closing Date, will engage, any third-party to provide “due diligence services” as defined in services within the meaning of Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or Issuer in connection with the transactions contemplated by this Agreementissuance and offering of the Underwritten Notes.
(k) The Bank is the appropriate entity to comply with all of the requirements imposed on sponsors the sponsor of a securitization transaction in accordance with the final rules contained in Regulation RR, 17 C.F.R. § 246.1, et seq. (the “Credit Risk Retention Rules”), implementing the credit risk retention requirements of Section 15G of the Exchange Act (Act. The Bank does comply, as of the “date hereof, and will comply, for so long as the Credit Risk Retention Rules”)Rules are applicable, either directly or (to the extent permitted by in all material respects with the Credit Risk Retention Rules) , including the disclosure requirements thereof, through one or more whollya Wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates Owned Affiliate (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining including causing such Wholly-Owned Affiliate to maintain a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined Trust for the duration required in accordance with the Credit Risk Retention Rules, without any impermissible transferhedging, hedging transfer or financing of such retained interest.
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Issuance Trust)
Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all 8 Underwriting Agreement-Series 2022-1 material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and, as will be set forth or contemplated in the Final Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party, the consummation of the Retained Notes Transaction or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(j) The Bank has not engaged or caused any other person to engage, nor will the Bank engage or cause any other person to engage prior to the Closing Date, any third-party to provide “due diligence services” as defined in Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction in accordance with the final rules implementing the credit risk retention requirements of Section 15G of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interest.,
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Representations, Warranties and Agreements of the Bank. The BankBank represents, as to and for itself only, represents and warrants to and agrees with the Underwriters as followsthat:
(a) The Bank (i) is duly organized, validly existing and in good standing a state chartered bank under the laws of the jurisdiction Commonwealth of Pennsylvania with the corporate power and authority necessary to own or hold its properties and to conduct its business in which it is organizedengaged, (ii) is and are duly qualified to transact do business in, and is in good standing under, the laws of as a foreign corporation or other business entity in each jurisdiction in which its activities require ownership or lease of property or the conduct of its businesses requires such qualification, and (iii) has full powerexcept where the failure to be so qualified or in good standing would not reasonably be expected, authority and legal right individually or in the aggregate, to own its properties and conduct its business as such properties are presently owned and such business is presently conducted and to executehave a Material Adverse Effect, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement to which it shall be a partycharter of the Bank is in full force and effect.
(b) The Receivables Purchase Agreement Bank is not in violation of its articles of incorporation or bylaws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound or to which any of the property or assets of the Bank is subject except for such defaults that would not be expected to result in a Material Adverse Effect.
(c) The deposit accounts of the Bank are insured by the FDIC to the fullest extent permitted by the Federal Deposit Insurance Act, as amended, 12 U.S.C. 1811 et seq., and the rules and regulations of the FDIC thereunder, and all premiums and assessments required to be paid in connection therewith have been paid when due (after giving effect to any applicable extensions), and no proceeding for the modification, termination or revocation of such insurance are pending or, to the knowledge of the Bank, threatened. The Bank is the only depository institution subsidiary of the Company and the Bank is a party member in good standing of the Federal Home Loan Bank System.
(d) The Bank has received an overall Community Reinvestment Act (“CRA”) rating of at least “Satisfactory” and has not been informed in writing by any Regulatory Authority that it may receive a less than “Satisfactory” rating for CRA purposes within one year, nor, to the Bank’s knowledge, has the Bank been informed other than in writing by any Regulatory Authority that it may receive a less than “Satisfactory” rating for CRA purposes within one year. The Bank is not aware of any facts or circumstances that exist that would cause the Bank to be (i) not in satisfactory compliance in any material respect with the CRA, and the regulations promulgated thereunder, or to be assigned a CRA rating by federal or state bank regulators of lower than “Satisfactory,” or (ii) not in material compliance with the privacy of customer information requirements contained in any federal and state privacy laws and regulations applicable to the Bank, including, without limitation, in Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 and regulations promulgated thereunder, as well as the provisions of the information security program adopted by the Bank, pursuant to 12 C.F.R. Part 364.
(e) This Agreement has been duly authorized, executed and delivered by the BankBank and, and assuming the due authorization, execution and delivery thereof when duly executed by the other parties theretoUnderwriter, will constitute the Receivables Purchase Agreement constitutes valid and binding obligations agreement of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, insolvency and moratorium or other similar laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement to which the Bank is a party will conform in all material respects to the description thereof contained in the Preliminary Prospectus and the Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by general equitable principles and except as any court, regulatory body, administrative agency, governmental body indemnification or arbitrator now pending or, contribution provisions thereof may be limited under applicable securities laws and banking laws. The Bank has the full power and authority to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under enter into this Agreement or the Receivables Purchase Agreement to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement to which it is a party.
(e) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement to which it is a party (individually and in the aggregate) will be true and correct in all material respectsAgreement.
(f) No consent, approval, authorization, order, registration or qualification The execution and delivery of or with any court or governmental agency or body is required for this Agreement by the execution, delivery Bank and the compliance and performance by the Bank of, or with the compliance by the Bank with, provisions of this Agreement or the Receivables Purchase Agreement to which it is a party or and the consummation of the transactions herein contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, duly authorized by all necessary corporate action on the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation part of the Servicer enforceable against Bank and do not and will not, whether with or without the Servicer giving of notice or passage or time or both, conflict with or result in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity breach or at law).
(h) The Bank agrees it has not granted, assigned, pledged or transferred and shall not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the Receivables made pursuant to the Receivables Purchase Agreement.
(i) Neither the transfer of the Receivables under the Receivables Purchase Agreement to which the Bank is a party nor the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation violation of any of the transactions herein terms or therein contemplated, nor the fulfillment of the terms of any Transaction Document or this Agreement, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration provisions of, or constitute a default or result in a right to require the repurchase, redemption or repayment of all or a portion of indebtedness by the Bank prior to its scheduled maturity under, the terms any indenture, mortgage, deed of any material indenture trust, loan agreement or other agreement or instrument to which the Bank or any of its subsidiaries is a party or by which it the Bank or any of its properties subsidiaries is bound or may be affected to which any of the property or assets of the Bank or any material statuteof its subsidiaries is subject, order nor will such action result in any violation of the provisions of the articles of incorporation or bylaws of the Bank or any statute or any order, rule or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator Regulatory Authority having jurisdiction over the Bank or will any of its subsidiaries or any of their properties, except for those conflicts, breaches, violations, defaults or repurchase rights that would not result in the creation of a Material Adverse Effect. Any certificate signed by any Lien upon any property or assets officer of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(j) The Bank has not engaged or caused any other person to engage, nor will the Bank engage or cause any other person to engage prior delivered to the Closing Date, any third-party to provide “due diligence services” as defined in Rule 17g-10(d)(1) under Representative or counsel for the Exchange Act Underwriters in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held this Agreement shall be deemed a representation and warranty by the Trust or the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction in accordance with the final rules implementing the credit risk retention requirements of Section 15G of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules)to matters covered thereby, satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interestto each Underwriter.
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Representations, Warranties and Agreements of the Bank. The Bank, as to and for itself only, Bank represents and warrants to to, and agrees with with, the Underwriters as followsthat:
(a) The Bank It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, (ii) is qualified to transact business in, and is in good standing under, the laws of each jurisdiction in which its activities require such qualification, and (iii) has has, and had at all relevant times, full power, authority and legal right to own its properties and conduct its business as such properties are presently owned and such business is presently conducted are described in the Registration Statement, the Preliminary Prospectus and the Final Prospectus, to service the Receivables, to administer the Trust and to execute, deliver and perform its obligations under this Agreement and the Receivables Purchase Agreement each Transaction Document to which it shall be is a party.
(b) The Receivables Purchase Agreement Each Transaction Document to which the Bank is a party has been duly authorized, executed and delivered by the Bank, and assuming the due authorization, execution and delivery thereof by the other parties thereto, the Receivables Purchase Agreement each such Transaction Document constitutes valid and binding obligations of the Bank, enforceable against the Bank in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law). As of the Closing Date, the Receivables Purchase Agreement each Transaction Document to which the Bank is a party will conform in all 8 Underwriting Agreement-Series 2021-1 material respects to the description thereof contained in the Preliminary Prospectus and the Final Prospectus.
(c) This Agreement has been duly and validly authorized, executed and delivered by the Bank.
(d) Other than as set forth or contemplated in the Preliminary Prospectus and, as will be set forth or contemplated in the Final Prospectus, there are no charges, investigations, actions, suits, claims or proceedings affecting the Bank before or by any court, regulatory body, administrative agency, governmental body or arbitrator now pending or, to the best knowledge of the Bank, threatened that, separately or in the aggregate, would (i) reasonably be likely to have a material adverse effect on (x) the general affairs, business, management, financial condition, stockholders’ equity, results of operations, regulatory status or business prospects of the Bank or (y) the ability of the Bank to perform its obligations under this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party or (ii) assert the invalidity of this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a partyparty or any Note.
(ed) As of the Closing Date, the representation and warranties of the Bank in the Receivables Purchase Agreement each Transaction Document to which it is a party (individually and in the aggregate) will be true and correct in all material respects, as if set forth herein (except to the extent any such representation or warranty relates to an earlier point in time in which case such representation and warranties are true and correct as of such date).
(fe) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the execution, delivery and performance by the Bank of, or the compliance by the Bank with, this Agreement or the Receivables Purchase Agreement any Transaction Document to which it is a party party, the consummation of the Retained Notes Transaction or the consummation of the transactions contemplated hereby or thereby other than (i) those that have been obtained or made and remain in full force and effect and (ii) without limitation, the filing of Uniform Commercial Code financing statements with respect to the Receivables.
(g) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Servicer, and assuming the due authorization, execution and delivery thereof by the Trustee and the Transferor, constitutes a valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is pursuant to a proceeding in equity or at law).
(hf) The Bank agrees it has not granted, assigned, pledged or transferred and shall will not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Receivables, except as provided in the Receivables Purchase Agreement, and agrees to take all action required by the Receivables Purchase Agreement in order to effect the sale of the related Receivables made pursuant to the Receivables Purchase Agreement.
(ig) Neither None of the transfer of the Receivables under to the Receivables Purchase Agreement to which Transferor by the Bank is a party nor Bank, the execution or delivery of this Agreement or any Transaction Document by the Bank, nor the consummation of the Retained Notes Transaction, the consummation of any of the transactions herein or therein contemplated, nor or the fulfillment of the terms of any Transaction Document or this AgreementDocument, will result in the breach of any term or provision of the charter or by-laws of the Bank or conflict with, result in a material breach, violation or acceleration of, or constitute a default under, the terms of any material indenture or other agreement or instrument to which the Bank is a party or by which it or its properties is bound or may be affected or any material statute, order or regulation applicable to the Bank of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Bank or will result in the creation of any Lien upon any property or assets of the Bank (other than as contemplated in any Transaction Document). The Bank is not a party to, bound by, or in breach or violation of, any indenture or other agreement or instrument, or subject to, or in violation of, any statute, order or regulation of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over it, that materially and adversely affects the ability of it to perform its obligations under this Agreement or any Transaction Document to which it is a party.
(j) The Bank has not engaged or caused any other person to engage, nor will the Bank engage or cause any other person to engage prior to the Closing Date, any third-party to provide “due diligence services” as defined in Rule 17g-10(d)(1) under the Exchange Act in connection with the offering of the Certificates or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Trust or the transactions contemplated by this Agreement.
(k) The Bank is the appropriate entity to comply with all requirements imposed on sponsors of a securitization transaction in accordance with the final rules implementing the credit risk retention requirements of Section 15G of the Exchange Act (the “Credit Risk Retention Rules”), either directly or (to the extent permitted by the Credit Risk Retention Rules) through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules). The Bank, directly or through one or more wholly-owned affiliates (as defined in the Credit Risk Retention Rules), satisfies, and will satisfy on the Closing Date, the Credit Risk Retention Rules by maintaining a “seller’s interest” (as defined in the Credit Risk Retention Rules) in the Trust of not less than 5% of the aggregate unpaid principal balance of all outstanding investor “ABS interests” (as defined in the Credit Risk Retention Rules) in the Trust, determined in accordance with the Credit Risk Retention Rules, without any impermissible transfer, hedging or financing of such retained interest.,
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