Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 15 contracts

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

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company represents, warrants and ~~covenants to each Underwriter as of~~ agrees with the ~~date hereof and as of the Closing Date (unless otherwise specified) as follows~~respective Underwriters that: (a) ~~(i) A registration statement on Form S-3 (Nos~~The Registration Statement has become effective under the 1933 Act. ~~333~~The aggregate principal amount of the Certificates does not exceed the remaining amount of mortgage-~~130862, 000-000000-00~~ backed securities that may be offered and ~~333-130862-02), including a prospectus and such amendments thereto~~ sold under the Registration Statement as ~~may have been required to~~ of the date hereof. The Registration Statement, as of the date it was declared effective (its "Effective Date"), and the portion of the Registration Statement relating to the ~~offering of notes~~ Certificates (including, without limitation, the Prospectus), as described therein from time to time in accordance with Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission deemed effective date thereof pursuant to Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 430B under the ~~Act)~~1933 Act (its "Deemed Effective Date") complied, are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Actcomplies and/or will comply, as ~~set forth in the General Instructions~~ applicable, as to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the ~~applicable~~ requirements of the 1933 Act and the ~~Rules~~ 1933 Act Rules; and ~~Regulations~~the information in the Registration Statement, as of its Effective Date, and ~~did not include any untrue statement~~ the information in the portion of ~~a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date,~~ the Registration Statement ~~and~~ relating to the ~~Prospectus~~ Certificates (including, without limitation, the Prospectus), as of its Deemed Effective Date, did not, does not and/or will ~~conform in all material respects with the applicable requirements of the Act and the Rules and Regulations~~not, ~~and neither of such documents will include any~~ as applicable, contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading~~; provided~~, ~~however, that~~ and the ~~foregoing does not apply to~~ information ~~contained~~ in ~~or omitted from either~~ the Prospectus as of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did date hereof, does not, and at as of the Closing Date (as hereinafter defined), will not, ~~include any~~ contain an untrue statement of a material fact or omit to state any material fact ~~required to be stated therein or~~ necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus)misleading; provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished~~ as to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” Excluded Information (as defined ~~in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~below). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 12 contracts

Samples: Underwriting Agreement (LB-UBS Commercial Mortgage Trust 2007-C7), Underwriting Agreement (LB-UBS Commercial Mortgage Trust 2008-C1), Underwriting Agreement (Lb-Ubs Commercial Mortgage Trust 2006 C6)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement~~ The Registration Statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02), including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 7 contracts

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

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement~~ The Registration Statement on Form S-3 (Nos. 333-~~130862~~142033, 000-000000-00 and 333-~~130862~~142033-02), including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 7 contracts

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

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company represents, warrants and ~~covenants to each Underwriter as of~~ agrees with the ~~date hereof and as of the Closing Date (unless otherwise specified) as follows~~respective Underwriters that: (a~~) (i~~) A registration statement on Form S-3 (~~Nos~~No. 333-~~130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required~~ 119328) with respect to the ~~date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act~~ Certificates has been prepared by the Company and filed with the Securities and Exchange Commission (~~which may have included one or more preliminary prospectuses~~ the "Commission"), and ~~prospectus supplements meeting~~ complies as to form in all material respects with the requirements of ~~Rule 430~~ the Securities Act of ~~the Act) and such registration statement~~1933, as ~~amended, has become effective; such registration statement, as amended~~amended (the "1933 Act"), and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission ~~(the “Rules~~ thereunder, including Rule 415, and ~~Regulations”)~~ has become effective under the 1933 Act. As used in this Underwriting Agreement (this "Agreement" or the "Underwriting Agreement"), ~~are respectively referred to herein as the “~~(i) "Registration Statement” " means that registration statement and ~~the “Prospectus”; provided that a supplement~~ all exhibits thereto, as amended or supplemented to the ~~Prospectus prepared pursuant to Section 7(a)~~ date of this ~~Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates~~Agreement; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As "Basic Prospectus" means the prospectus included in the Registration Statement at the time it became effective, or as subsequently filed with the Commission pursuant to paragraph (b) of Rule 424 of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; 1933 Act; (iii) On "Prospectus Supplement" means the ~~effective date~~ prospectus supplement specifically relating to the Certificates, as most recently filed with, or transmitted for filing to, the Commission pursuant to paragraph (b) of Rule 424 of the ~~Registration Statement~~1933 Act; (iv) "Prospectus" means the Basic Prospectus, together with the Prospectus Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form of the Prospectus Supplement that has heretofore been filed pursuant to paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus" means the Basic Prospectus, together with any Preliminary Prospectus Supplement. The aggregate principal amount of the Certificates does not exceed the remaining amount of mortgage-backed securities that may be offered and sold under the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the ~~applicable settlement~~ date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Datehereof. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 6 contracts

Samples: Underwriting Agreement (LB-UBS Commercial Mortgage Trust 2005-C7), Underwriting Agreement (LB-UBS Commercial Mortgage Trust 2005-C2), Underwriting Agreement (LB-UBS Commercial Mortgage Trust 2004-C8)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement~~ The Registration Statement on Form S-3 (Nos. 333-~~130862~~142033, 000-000000-00 and 333-~~130862~~142033-02), including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 5 contracts

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

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company represents, warrants and ~~covenants to each Underwriter as of~~ agrees with the ~~date hereof and as of the Closing Date (unless otherwise specified) as follows~~respective Underwriters that: (a~~) (i~~) A registration statement on Form S-3 (~~Nos~~No. 333-~~130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required~~ 58562) with respect to the ~~date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act~~ Certificates has been prepared by the Company and filed with the Securities and Exchange Commission (~~which may have included one or more preliminary prospectuses~~ the "Commission"), and ~~prospectus supplements meeting~~ complies as to form in all material respects with the requirements of ~~Rule 430~~ the Securities Act of ~~the Act) and such registration statement~~1933, as ~~amended, has become effective; such registration statement, as amended~~amended (the "1933 Act"), and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission ~~(the “Rules~~ thereunder, including Rule 415, and ~~Regulations”)~~ has become effective under the 1933 Act. As used in this Underwriting Agreement (this "Agreement" or the "Underwriting Agreement"), ~~are respectively referred to herein as the “~~(i) "Registration Statement” " means that registration statement and ~~the “Prospectus”; provided that a supplement~~ all exhibits thereto, as amended or supplemented to the ~~Prospectus prepared pursuant to Section 7(a)~~ date of this ~~Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates~~Agreement; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As "Basic Prospectus" means the prospectus included in the Registration Statement at the time it became effective, or as subsequently filed with the Commission pursuant to paragraph (b) of Rule 424 of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; 1933 Act; (iii) On "Prospectus Supplement" means the ~~effective date~~ prospectus supplement specifically relating to the Certificates, as most recently filed with, or transmitted for filing to, the Commission pursuant to paragraph (b) of Rule 424 of the ~~Registration Statement~~1933 Act; (iv) "Prospectus" means the Basic Prospectus, together with the Prospectus Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form of the Prospectus Supplement that has heretofore been filed pursuant to paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus" means the Basic Prospectus, together with any Preliminary Prospectus Supplement. The aggregate principal amount of the Certificates does not exceed the remaining amount of mortgage-backed securities that may be offered and sold under the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the ~~applicable settlement~~ date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Datehereof. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 3 contracts

Samples: Underwriting Agreement (Lb Ubs Commercial Mortgage Trust 2001 C3), Underwriting Agreement (Structured Asset Securities Corp), Underwriting Agreement (Lb Ubs Com Mor Tr 2001 C2 Com Mor Pass Thru Cer Ser 2001 C2)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company represents, warrants and ~~covenants to each Underwriter as of~~ agrees with the ~~date hereof and as of the Closing Date (unless otherwise specified) as follows~~respective Underwriters that: (a~~) (i~~) A registration statement on Form S-3 (~~Nos~~No. 333-~~130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required~~ 73338) with respect to the ~~date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act~~ Certificates has been prepared by the Company and filed with the Securities and Exchange Commission (~~which may have included one or more preliminary prospectuses~~ the "Commission"), and ~~prospectus supplements meeting~~ complies as to form in all material respects with the requirements of ~~Rule 430~~ the Securities Act of ~~the Act) and such registration statement~~1933, as ~~amended, has become effective; such registration statement, as amended~~amended (the "1933 Act"), and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission ~~(the “Rules~~ thereunder, including Rule 415, and ~~Regulations”)~~ has become effective under the 1933 Act. As used in this Underwriting Agreement (this "Agreement" or the "Underwriting Agreement"), ~~are respectively referred to herein as the “~~(i) "Registration Statement” " means that registration statement and ~~the “Prospectus”; provided that a supplement~~ all exhibits thereto, as amended or supplemented to the ~~Prospectus prepared pursuant to Section 7(a)~~ date of this ~~Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates~~Agreement; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As "Basic Prospectus" means the prospectus included in the Registration Statement at the time it became effective, or as subsequently filed with the Commission pursuant to paragraph (b) of Rule 424 of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; 1933 Act; (iii) On "Prospectus Supplement" means the ~~effective date~~ prospectus supplement specifically relating to the Certificates, as most recently filed with, or transmitted for filing to, the Commission pursuant to paragraph (b) of Rule 424 of the ~~Registration Statement~~1933 Act; (iv) "Prospectus" means the Basic Prospectus, together with the Prospectus Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form of the Prospectus Supplement that has heretofore been filed pursuant to paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus" means the Basic Prospectus, together with any Preliminary Prospectus Supplement. The aggregate principal amount of the Certificates does not exceed the remaining amount of mortgage-backed securities that may be offered and sold under the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the ~~applicable settlement~~ date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Datehereof. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 3 contracts

Samples: Underwriting Agreement (Structured Asset Securities Corp), Underwriting Agreement (Structured Asset Sec Corp Comm Mort Pas THR Cert Ser 2002-C2), Underwriting Agreement (Structured Asset Sec Corp Lb Ubs Comm Mort Tr 2002-C4)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (~~iii~~A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about March 15, 2017 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 3 contracts

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

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company represents, warrants and ~~covenants to each Underwriter as of~~ agrees with the ~~date hereof and as of the Closing Date (unless otherwise specified) as follows~~respective Underwriters that: (a~~) (i~~) A registration statement on Form S-3 (~~Nos~~No. 333-~~130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required~~ 105935) with respect to the ~~date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act~~ Certificates has been prepared by the Company and filed with the Securities and Exchange Commission (~~which may have included one or more preliminary prospectuses~~ the "Commission"), and ~~prospectus supplements meeting~~ complies as to form in all material respects with the requirements of ~~Rule 430~~ the Securities Act of ~~the Act) and such registration statement~~1933, as ~~amended, has become effective; such registration statement, as amended~~amended (the "1933 Act"), and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission ~~(the “Rules~~ thereunder, including Rule 415, and ~~Regulations”)~~ has become effective under the 1933 Act. As used in this Underwriting Agreement (this "Agreement" or the "Underwriting Agreement"), ~~are respectively referred to herein as the “~~(i) "Registration Statement” " means that registration statement and ~~the “Prospectus”; provided that a supplement~~ all exhibits thereto, as amended or supplemented to the ~~Prospectus prepared pursuant to Section 7(a)~~ date of this ~~Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates~~Agreement; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As "Basic Prospectus" means the prospectus included in the Registration Statement at the time it became effective, or as subsequently filed with the Commission pursuant to paragraph (b) of Rule 424 of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; 1933 Act; (iii) On "Prospectus Supplement" means the ~~effective date~~ prospectus supplement specifically relating to the Certificates, as most recently filed with, or transmitted for filing to, the Commission pursuant to paragraph (b) of Rule 424 of the ~~Registration Statement~~1933 Act; (iv) "Prospectus" means the Basic Prospectus, together with the Prospectus Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form of the Prospectus Supplement that has heretofore been filed pursuant to paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus" means the Basic Prospectus, together with any Preliminary Prospectus Supplement. The aggregate principal amount of the Certificates does not exceed the remaining amount of mortgage-backed securities that may be offered and sold under the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the ~~applicable settlement~~ date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Datehereof. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 3 contracts

Samples: Underwriting Agreement (Structured Asset Sec Corp Lb Ubs Com Mort Tr 2003-C8), Underwriting Agreement (Structured Asset Sec Corp Ii Lb Ubs Comm Mort Tr 2003-C7), Underwriting Agreement (Commercial Mortgage Pass-Through Certificates Series 2003-C5)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company represents, warrants and ~~covenants to each Underwriter as of~~ agrees with the ~~date hereof and as of the Closing Date (unless otherwise specified) as follows~~respective Underwriters that: (a~~) (i~~) A registration statement on Form S-3 (~~Nos~~No. 333-~~130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required~~ 100864) with respect to the ~~date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act~~ Certificates has been prepared by the Company and filed with the Securities and Exchange Commission (~~which may have included one or more preliminary prospectuses~~ the "Commission"), and ~~prospectus supplements meeting~~ complies as to form in all material respects with the requirements of ~~Rule 430~~ the Securities Act of ~~the Act) and such registration statement~~1933, as ~~amended, has become effective; such registration statement, as amended~~amended (the "1933 Act"), and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission ~~(the “Rules~~ thereunder, including Rule 415, and ~~Regulations”)~~ has become effective under the 1933 Act. As used in this Underwriting Agreement (this "Agreement" or the "Underwriting Agreement"), ~~are respectively referred to herein as the “~~(i) "Registration Statement” " means that registration statement and ~~the “Prospectus”; provided that a supplement~~ all exhibits thereto, as amended or supplemented to the ~~Prospectus prepared pursuant to Section 7(a)~~ date of this ~~Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates~~Agreement; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As "Basic Prospectus" means the prospectus included in the Registration Statement at the time it became effective, or as subsequently filed with the Commission pursuant to paragraph (b) of Rule 424 of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; 1933 Act; (iii) On "Prospectus Supplement" means the ~~effective date~~ prospectus supplement specifically relating to the Certificates, as most recently filed with, or transmitted for filing to, the Commission pursuant to paragraph (b) of Rule 424 of the ~~Registration Statement~~1933 Act; (iv) "Prospectus" means the Basic Prospectus, together with the Prospectus Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form of the Prospectus Supplement that has heretofore been filed pursuant to paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus" means the Basic Prospectus, together with any Preliminary Prospectus Supplement. The aggregate principal amount of the Certificates does not exceed the remaining amount of mortgage-backed securities that may be offered and sold under the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the ~~applicable settlement~~ date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Datehereof. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 3 contracts

Samples: Underwriting Agreement (Structured Asset Sec Corp Ii Com Mort Pas THR Cer Se 03 C3), Underwriting Agreement (Structured Asset Securities Corp Ii), Underwriting Agreement (Structured Asset Sec Corp Ii Com Mort Pas THR Cert Se 02 C7)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about September 29, 2017 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. ~~When executed and delivered by the parties thereto, each~~ Each of the Pooling and Servicing Agreement, the Transfer Agreement and the Receivables Purchase ~~Agreements will constitute~~ Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (fi) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. (ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Company has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (n) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes. (o) The Company has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act 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 Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.

Appears in 3 contracts

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

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company represents, warrants and ~~covenants to each Underwriter as of~~ agrees with the ~~date hereof and as of the Closing Date (unless otherwise specified) as follows~~respective Underwriters that: (a~~) (i~~) A registration statement on Form S-3 (~~Nos~~No. 333-~~130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required~~ 111598) respect to the ~~date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act~~ Certificates has been prepared by the Company and filed with the Securities and Exchange Commission (~~which may have included one or more preliminary prospectuses~~ the "Commission"), and ~~prospectus supplements meeting~~ complies as to form in all material respects with the requirements of ~~Rule 430~~ the Securities Act of ~~the Act) and such registration statement~~1933, as ~~amended, has become effective; such registration statement, as amended~~amended (the "1933 Act"), and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission ~~(the “Rules~~ thereunder, including Rule 415, and ~~Regulations”)~~ has become effective under the 1933 Act. As used in this Underwriting Agreement (this "Agreement" or the "Underwriting Agreement"), ~~are respectively referred to herein as the “~~(i) "Registration Statement” " means that registration statement and ~~the “Prospectus”; provided that a supplement~~ all exhibits thereto, as amended or supplemented to the ~~Prospectus prepared pursuant to Section 7(a)~~ date of this ~~Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates~~Agreement; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As "Basic Prospectus" means the prospectus included in the Registration Statement at the time it became effective, or as subsequently filed with the Commission pursuant to paragraph (b) of Rule 424 of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; 1933 Act; (iii) On "Prospectus Supplement" means the ~~effective date~~ prospectus supplement specifically relating to the Certificates, as most recently filed with, or transmitted for filing to, the Commission pursuant to paragraph (b) of Rule 424 of the ~~Registration Statement~~1933 Act; (iv) "Prospectus" means the Basic Prospectus, together with the Prospectus Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form of the Prospectus Supplement that has heretofore been filed pursuant to paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus" means the Basic Prospectus, together with any Preliminary Prospectus Supplement. The aggregate principal amount of the Certificates does not exceed the remaining amount of mortgage-backed securities that may be offered and sold under the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the ~~applicable settlement~~ date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Datehereof. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 3 contracts

Samples: Underwriting Agreement (Structured Asset Sec Corp Lb-Ubs Comm Mort Trust 2004-C2), Underwriting Agreement (Structured Asset Sec Corp Ii Lb Ubs Comm Mort Tr 2004 C1), Underwriting Agreement (Structured Asset Sec Corp Ii Lb-Ubs Comm Mort Trust 2004-C4)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about August 15, 2016 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 2 contracts

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

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about May 12, 2015 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) (i) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the 1940 Act.

Appears in 2 contracts

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

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about November 28, 2016 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 2 contracts

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

Representations, Warranties and Covenants of the Company. ~~Upon the execution~~ Each of the ~~applicable Terms Agreement,~~ representations and warranties (together with any related disclosure schedules thereto) and covenants made by the Company ~~represents~~to the Purchasers in the Purchase Agreement in connection with the Placement is hereby incorporated herein by reference into this Agreement (as though fully restated herein) and is, ~~warrants and covenants to each Underwriter~~ as of the date ~~hereof~~ of this Agreement and as of the Closing ~~Date (unless otherwise specified) as follows~~Date, hereby made to, and in favor of, the Co-Placement Agents. In addition to the foregoing, the Company represents and warrants that: (a) ~~(i) A~~ The Company has prepared and filed with the Commission a registration statement on Form ~~S-3~~ F-3 (~~Nos~~Registration No. 333-~~130862, 000-000000-00 and 333-130862-02~~240289), ~~including~~ and amendments thereto, and related preliminary prospectuses, for the registration under the Securities Act of 1933. At the time of such filing, the Company met the requirements of Form F-3 under the Securities Act. Such registration statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule. The Company will file with the Commission pursuant to Rule 424(b) under the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated thereunder, a ~~prospectus and such amendments thereto as may have been required~~ supplement to the ~~date hereof,~~ form of prospectus included in such registration statement relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 placement of the ~~Act~~Shares and the plan of distribution thereof and has advised the Co-Placement Agents of all further information (financial and other) ~~and such~~ with respect to the Company required to be set forth therein. Such registration statement, including the exhibits thereto, as ~~amended~~amended at the date of this Agreement, ~~has become effective~~is hereinafter called the “Registration Statement”; such ~~registration statement, as amended,~~ prospectus in the form in which it appears in the Registration Statement is hereinafter called the “Base Prospectus”; and the ~~prospectus relating to~~ supplemented form of prospectus, in the ~~sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus~~ form in which it will be filed with the Commission pursuant to Rule 424(b) of (including the ~~rules and regulations of the Commission (~~Base Prospectus as so supplemented) is hereinafter called the “~~Rules and Regulations”) under~~ Prospectus Supplement.” Any reference in this Agreement to the ~~Act), are respectively referred to herein as the “~~Registration Statement~~” and~~ , the ~~“Prospectus”; provided that a supplement to~~ Base Prospectus or the Prospectus ~~prepared pursuant to Section 7(a) of this Agreement~~ Supplement shall be deemed to ~~have supplemented~~ refer to and include the documents incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 12 of Form F-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus ~~only with respect~~ Supplement, as the case may be; and any reference in this Agreement to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied terms “amend,” “amendment” or “supplement” with respect to the Registration Statement~~; (ii) As~~ , the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the ~~Closing Date~~Base Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,” “described,” “referenced,” “set forth” or “stated” in the Registration Statement, the ~~Preliminary~~ Base Prospectus or the Prospectus Supplement (and ~~the Prospectus, except with respect to any modification to which the Representatives have agreed in writing,~~ all other references of like import) shall be in deemed to mean and include all ~~substantive respects in the form furnished to the Representatives before~~ such ~~date or, to the extent not completed on such date, shall contain only such specific additional information~~ financial statements and schedules and other ~~changes (beyond that contained~~ information which is or is deemed to be incorporated by reference in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the ~~Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact~~ Base Prospectus or ~~omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and~~ the Prospectus ~~will conform in all material respects with~~ Supplement, as the ~~applicable requirements of~~ case may be. No stop order suspending the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation effectiveness of the Registration Statement or the ~~Prospectus; (iv) The Preliminary~~ use of the Base Prospectus at or the ~~Time of Sale did not~~Prospectus Supplement has been issued, and ~~at the Closing Date will not~~no proceeding for any such purpose is pending or has been initiated or, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the ~~omission~~ Company’s knowledge, is threatened by the Commission. For purposes of ~~pricing and price-dependent information~~this Agreement, ~~which information shall of necessity appear only in~~ “Free Writing Prospectus” has the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined meaning set forth in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement Securities Act and the ~~applicable Terms Agreement and to authorize~~ “Time of Sale Prospectus” means the ~~sale of the Notes~~preliminary prospectus, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company together with the ~~provisions hereof or thereof~~Free Writing Prospectuses, ~~will (i) conflict with or result in a breach of any of the material terms and provisions of~~if any, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required used in connection with the ~~valid and proper authorization~~Placement, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Dateincluding any documents incorporated by reference therein. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 2 contracts

Samples: Share Purchase Agreement (SPI Energy Co., Ltd.), Securities Purchase Agreement (SPI Energy Co., Ltd.)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company represents, warrants and ~~covenants to each Underwriter as of~~ agrees with the ~~date hereof and as of the Closing Date (unless otherwise specified) as follows~~respective Underwriters that: (a~~) (i~~) A registration statement on Form S-3 (~~Nos~~No. 333-~~130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required~~ 31070) with respect to the ~~date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act~~ Certificates has been prepared by the Company and filed with the Securities and Exchange Commission (~~which may have included one or more preliminary prospectuses~~ the "Commission"), and ~~prospectus supplements meeting~~ complies as to form in all material respects with the requirements of ~~Rule 430~~ the Securities Act of ~~the Act) and such registration statement~~1933, as ~~amended, has become effective; such registration statement, as amended~~amended (the "1933 Act"), and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission ~~(the “Rules~~ thereunder, including Rule 415, and ~~Regulations”)~~ has become effective under the 1933 Act. As used in this Underwriting Agreement (this "Agreement" or the "Underwriting Agreement"), ~~are respectively referred to herein as the “~~(i) "Registration Statement” " means that registration statement and ~~the “Prospectus”; provided that a supplement~~ all exhibits thereto, as amended or supplemented to the ~~Prospectus prepared pursuant to Section 7(a)~~ date of this ~~Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates~~Agreement; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As "Basic Prospectus" means the prospectus included in the Registration Statement at the time it became effective, or as subsequently filed with the Commission pursuant to paragraph (b) of Rule 424 of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; 1933 Act; (iii) On "Prospectus Supplement" means the ~~effective date~~ prospectus supplement specifically relating to the Certificates, as most recently filed with, or transmitted for filing to, the Commission pursuant to paragraph (b) of Rule 424 of the ~~Registration Statement~~1933 Act; (iv) "Prospectus" means the Basic Prospectus, together with the Prospectus Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form of the Prospectus Supplement that has heretofore been filed pursuant to paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus" means the Basic Prospectus, together with any Preliminary Prospectus Supplement. The aggregate principal amount of the Certificates does not exceed the remaining amount of mortgage-backed securities that may be offered and sold under the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the ~~applicable settlement~~ date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Datehereof. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 2 contracts

Samples: Underwriting Agreement (Commercial Mortgage Pass-Through Certificates Series 2000-C4), Underwriting Agreement (Structured Asset Sec Corp Comm Mort Pas THR Cert Ser 2000 C5)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about [ ] (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 2 contracts

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

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about April 3, 2014 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. The Master Trust does not rely on the exemption from the definition of “investment company” in Section 3(c)(1) or 3(c)(7) of the 1940 Act. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (n) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes.

Appears in 2 contracts

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

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about July 12, 2021 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 2 contracts

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

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about May 6, 2016 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 2 contracts

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

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about May 4, 2018 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 2 contracts

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

Appears in 2 contracts

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

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about August 23, 2019 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 2 contracts

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

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about October 19, 2015 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 2 contracts

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

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about July 16, 2015 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 2 contracts

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

Representations, Warranties and Covenants of the Company. ~~Upon the execution~~ Each of the ~~applicable Terms Agreement,~~ representations and warranties (together with any related disclosure schedules thereto) and covenants made by the Company ~~represents~~to the Purchasers in the Purchase Agreement in connection with the Placement is hereby incorporated herein by reference into this Agreement (as though fully restated herein) and is, ~~warrants and covenants to each Underwriter~~ as of the date ~~hereof~~ of this Agreement and as of the Closing ~~Date (unless otherwise specified) as follows~~Date, hereby made to, and in favor of, the Placement Agent. In addition to the foregoing, the Company represents and warrants that: (a) ~~(i) A~~ The Company has prepared and filed with the Commission a registration statement on Form ~~S-3~~ F-3 (~~Nos~~Registration No. 333-~~130862, 000-000000-00 and 333-130862-02~~240289), ~~including~~ and amendments thereto, and related preliminary prospectuses, for the registration under the Securities Act of 1933. At the time of such filing, the Company met the requirements of Form F-3 under the Securities Act. Such registration statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule. The Company will file with the Commission pursuant to Rule 424(b) under the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated thereunder, a ~~prospectus and such amendments thereto as may have been required~~ supplement to the ~~date hereof,~~ form of prospectus included in such registration statement relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 placement of the ~~Act~~Shares and the plan of distribution thereof and has advised the Placement Agent of all further information (financial and other) ~~and such~~ with respect to the Company required to be set forth therein. Such registration statement, including the exhibits thereto, as ~~amended~~amended at the date of this Agreement, ~~has become effective~~is hereinafter called the “Registration Statement”; such ~~registration statement, as amended,~~ prospectus in the form in which it appears in the Registration Statement is hereinafter called the “Base Prospectus”; and the ~~prospectus relating to~~ supplemented form of prospectus, in the ~~sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus~~ form in which it will be filed with the Commission pursuant to Rule 424(b) of (including the ~~rules and regulations of the Commission (~~Base Prospectus as so supplemented) is hereinafter called the “~~Rules and Regulations”) under~~ Prospectus Supplement.” Any reference in this Agreement to the ~~Act), are respectively referred to herein as the “~~Registration Statement~~” and~~ , the ~~“Prospectus”; provided that a supplement to~~ Base Prospectus or the Prospectus ~~prepared pursuant to Section 7(a) of this Agreement~~ Supplement shall be deemed to ~~have supplemented~~ refer to and include the documents incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 12 of Form F-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus ~~only with respect~~ Supplement, as the case may be; and any reference in this Agreement to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied terms “amend,” “amendment” or “supplement” with respect to the Registration Statement~~; (ii) As~~ , the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the ~~Closing Date~~Base Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,” “described,” “referenced,” “set forth” or “stated” in the Registration Statement, the ~~Preliminary~~ Base Prospectus or the Prospectus Supplement (and ~~the Prospectus, except with respect to any modification to which the Representatives have agreed in writing,~~ all other references of like import) shall be in deemed to mean and include all ~~substantive respects in the form furnished to the Representatives before~~ such ~~date or, to the extent not completed on such date, shall contain only such specific additional information~~ financial statements and schedules and other ~~changes (beyond that contained~~ information which is or is deemed to be incorporated by reference in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the ~~Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact~~ Base Prospectus or ~~omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and~~ the Prospectus ~~will conform in all material respects with~~ Supplement, as the ~~applicable requirements of~~ case may be. No stop order suspending the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation effectiveness of the Registration Statement or the ~~Prospectus; (iv) The Preliminary~~ use of the Base Prospectus at or the ~~Time of Sale did not~~Prospectus Supplement has been issued, and ~~at the Closing Date will not~~no proceeding for any such purpose is pending or has been initiated or, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the ~~omission~~ Company’s knowledge, is threatened by the Commission. For purposes of ~~pricing and price-dependent information~~this Agreement, ~~which information shall of necessity appear only in~~ “Free Writing Prospectus” has the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined meaning set forth in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement Securities Act and the ~~applicable Terms Agreement and to authorize~~ “Time of Sale Prospectus” means the ~~sale of the Notes~~preliminary prospectus, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company together with the ~~provisions hereof or thereof~~Free Writing Prospectuses, ~~will (i) conflict with or result in a breach of any of the material terms and provisions of~~if any, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required used in connection with the ~~valid and proper authorization~~Placement, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Dateincluding any documents incorporated by reference therein. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Securities Purchase Agreement (SPI Energy Co., Ltd.)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about June 15, 2016 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 1 contract

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

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about September 3, 2014 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. The Master Trust does not rely on the exemption from the definition of “investment company” in Section 3(c)(1) or 3(c)(7) of the 1940 Act. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (n) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Master Trust)

Representations, Warranties and Covenants of the Company. ~~Upon~~ The Company hereby represents and warrants to the ~~execution of~~ Underwriter as follows and acknowledges that the ~~applicable Terms Agreement~~Underwriter is relying upon such representations, ~~the Company represents, warrants~~ warranties and covenants ~~to each Underwriter as~~ in connection with its execution and delivery of ~~the date hereof and as of the Closing Date (unless otherwise specified) as follows~~this Agreement: (a~~) (i~~) A registration statement on Form ~~S-3~~ S-1 (~~Nos~~No. 333-~~130862~~155227) with respect to the Firm Shares, ~~000-000000-00~~ the Directed Shares, and ~~333-130862-02~~the Additional Shares has (i) been prepared by the Company in conformity with the requirements of the United States Securities Act of 1933, as amended (the "Securities Act"), ~~including a prospectus~~ and ~~such amendments thereto as may have been required to~~ the ~~date hereof~~rules and regulations (the "Rules and Regulations") of the United States Securities and Exchange Commission (the "Commission") thereunder, ~~relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has~~ (ii) been filed with the Commission under the Securities Act (~~which may~~ iii) been amended as necessary pursuant to any comments received from the Commission and (iv) the Final Registration Statement containing the Final Prospectus has become effective under the Securities Act. Copies of such registration statement and the amendments thereto have ~~included one or more preliminary prospectuses~~ been delivered by the Company to the Underwriter. At any particular time, this initial registration statement, in the form then on file with the Commission, including all information contained in the registration statement (if any) pursuant to Rule 462(b) and ~~prospectus supplements meeting the requirements of Rule 430~~ then deemed to be a part of the ~~Act) and such~~ initial registration statement, and all 430A Information and all 430C Information, that in any case has not then been superseded or modified, shall be referred to as the "Initial Registration Statement". The Company may also have filed, or may file with the Commission, a Rule 462(b) registration statement covering the registration of Offered Securities. At any particular time, this Rule 462(b) registration statement, in the form then on file with the Commission, including the contents of the Initial Registration Statement incorporated by reference therein and including all 430A Information and all 430C Information, that in any case has not then been superseded or modified, shall be referred to as the "Additional Registration Statement". As used in this Agreement, "Registration Statement" means the Initial Registration Statement, as amended, ~~has become effective; such registration statement~~the Final Registration Statement and any Additional Registration Statement, ~~as amended~~at the Effective Time, including all information contained in the Final Registration Statement and the ~~prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus~~ Final Prospectus filed with the Commission pursuant to Rule 424(b) of the ~~rules~~ Rules and ~~regulations~~ Regulations and deemed to be a part of the ~~Commission~~ registration statement as of the Effective Time pursuant to paragraph (b) of Rule 430A of the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (iib) As of the ~~Closing Date~~time of execution and delivery of this Agreement, the Initial Registration Statement has been declared effective under the Securities Act and is not proposed to be amended. Any Additional Registration Statement has or will become effective upon filing with the Commission pursuant to Rule 462(b) and is not proposed to be amended. The Offered Securities all have been or will be duly registered under the Securities Act pursuant to the Initial Registration Statement and, if applicable, the Additional Registration Statement. (c) In connection with the Offering and distribution of the Offered Securities under the Registration Statement, the ~~Preliminary Prospectus~~ Company hereby represents and ~~the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished~~ warrants to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) Underwriter as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.follows:

Appears in 1 contract

Samples: Underwriting Agreement (BE Resources Inc.)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (~~a) (~~i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act, including that certain issuer free writing prospectus filed by the Company or any of its co-registrants with the Commission on or about May 12, 2023 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) Except as described in the Disclosure Materials, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of any Program Agreement to which it is a party, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth in any Program Agreement to which it is a party, which if adversely determined would materially and adversely affect the Collateral Certificate or the Notes, or the validity or enforceability of such Program Agreement, or (C) seeking adversely to affect the United States Federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary—Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (e) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (ef) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. ~~When executed and delivered by the parties thereto, each~~ Each of the Pooling and Servicing Agreement, the Transfer Agreement and the Receivables Purchase ~~Agreements will constitute~~ Agreement constitutes a ~~legal,~~ valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of or filings with any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the consummation of the transactions set forth in the Program Agreements, the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (fi) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. (gii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Company has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act. (h) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (hi) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (ij) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (jk) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (kl) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (lm) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (mn) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (o) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes. (p) The Company has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act 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 Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement~~ The Registration Statement on Form S-3 (Nos. 333-~~130862~~142033, 000-000000-00 and 333-~~130862~~142033-02), including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (n) No receivables have been conveyed to the Company pursuant to the receivables purchase agreement, dated as of August 1, 2002, between Capital One, F.S.B. and the Company, and it is not contemplated that any receivables will in the future be conveyed to the Company by Capital One, F.S.B.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to ~~each~~ the Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the ~~Representatives have~~ Underwriter has agreed in writing, shall be in all substantive respects in the form furnished to the ~~Representatives~~ Underwriter before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the ~~Representatives~~Underwriter) as the Company has advised the ~~Representatives~~Underwriter, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the ~~Underwriters~~ Underwriter in ~~their~~ its capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriter and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act, including that certain issuer free writing prospectus filed by the Company or any of its co-registrants with the Commission on or about November 17, 2022 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) Except as described in the Disclosure Materials, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of any Program Agreement to which it is a party, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth in any Program Agreement to which it is a party, which if adversely determined would materially and adversely affect the Collateral Certificate or the Notes, or the validity or enforceability of such Program Agreement, or (C) seeking adversely to affect the United States Federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary—Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (e) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (ef) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. ~~When executed and delivered by the parties thereto, each~~ Each of the Pooling and Servicing Agreement, the Transfer Agreement and the Receivables Purchase ~~Agreements will constitute~~ Agreement constitutes a ~~legal,~~ valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of or filings with any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the consummation of the transactions set forth in the Program Agreements, the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (fi) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. (gii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Company has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act. (h) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (hi) Except for the ~~Underwriters~~Underwriter, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (ij) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (jk) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (kl) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (lm) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (mn) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (o) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes. (p) The Company has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act 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 Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. ~~Upon~~ The Company represents and warrants to and agrees with the ~~execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each~~ Underwriter ~~as of the date hereof and as of the Closing Date (unless otherwise specified) as follows~~that: (a) ~~(i) A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have~~ the Registration Statement has been ~~required to the date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415~~ declared effective under the ~~Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the~~ Act~~) and such registration statement, as amended, has become effective~~; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations no stop order of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to preventing or suspending the use of ~~a registration statement on Form S-3 under~~ any Preliminary Prospectus or the ~~Act, as set forth in~~ effectiveness of the ~~General Instructions to Form S-3,~~ Registration Statement has been issued and ~~the conditions of Rule 415 under the Act,~~ no proceedings for such purpose have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date instituted or, to the ~~extent not completed on such date~~Company's knowledge after due inquiry, ~~shall contain only such specific additional information and other changes (beyond that contained in~~ are contemplated by the ~~latest~~ Commission; each Preliminary ~~Prospectus that has previously been furnished to~~ Prospectus, at the ~~Representatives) as the Company has advised the Representatives~~time of filing thereof, ~~before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed~~ complied in all material respects with the ~~applicable~~ requirements of the ~~Act~~ Act, and the ~~Rules and Regulations~~last Preliminary Prospectus distributed in connection with the offering of the Shares did not, as of its date, and ~~did~~ does not ~~include any~~ contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (~~misleading; the Registration Statement complied when it ~~being understood that no representation or warranty is made~~ became effective, complies and, at the time of purchase and any additional time of purchase and any time at which any sales with respect to which the ~~omission~~ Prospectus is delivered, will comply with the requirements of ~~pricing~~ the Act, and ~~price-dependent information~~the Prospectus will comply, as of its date and at the time of purchase and any additional times of purchase and any time at which ~~information shall~~ any sales with respect to which the Prospectus is delivered, with the requirements of ~~necessity appear only~~ the Act; any statutes, regulations, contracts or other documents that are required to be described in the ~~final Prospectus)~~Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement have been and will be so described or filed; the conditions to the use of Form S-1 have been satisfied; the Registration Statement did not when it became effective, does not and, at the time of purchase and any additional time of purchase and any time at which any sales with respect to which the Prospectus is delivered, will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus will not, as of its date and at the time of purchase and any additional time of purchase and any time at which any sales with respect to which the Prospectus is delivered, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that ~~this~~ the Company makes no warranty or representation ~~and warranty shall not apply~~ with respect to any ~~statements~~ statement contained in the last Preliminary Prospectus, the Registration Statement or ~~omissions made~~ the Prospectus in reliance upon and in conformity with information ~~relating to any~~ concerning an Underwriter and furnished in writing by or on behalf of such Underwriter through you to the Company ~~in writing by such Underwriter through the Representatives~~ expressly for use in the last Preliminary Prospectus, the Registration Statement or the Prospectus; ~~and~~ the Exchange Act Registration Statement has become effective as provided in Section 12 of the Exchange Act; and the Company has not distributed and will not distribute any "prospectus" (vwithin the meaning of the Act) ~~Other~~ or offering material in connection with the offering or sale of the Shares other than the Registration Statement, the then most recent Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.; (b) ~~The~~ each of the Company and each of the subsidiaries listed on Exhibit 21.1 to the Registration Statement (the "Subsidiaries") has been duly organized and is validly existing ~~as a Virginia limited liability company~~ and in good standing under the laws of ~~the Commonwealth~~ its respective jurisdiction of ~~Virginia. The Company has~~organization with authority and power, ~~in all material respects~~corporate or otherwise, ~~full power~~ to own, lease and ~~authority to own~~ operate its properties and to conduct its business as described in the ~~Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement~~ Registration Statement and the ~~applicable Terms Agreement and to authorize the sale of the Notes~~Prospectus and, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the ~~securities laws~~ Company, to: (i) execute and deliver this Agreement and to issue, sell and deliver the Shares as contemplated herein, (ii) execute, issue and deliver the Indenture and the Notes and perform its obligations thereunder, and (iii) issue and deliver the Conversion Shares in accordance with the terms of ~~any foreign jurisdiction~~ the Certificate of Designations of the [ %] Convertible Exchangeable Preferred Stock of the Company in the form filed as an exhibit to the Registration Statement (the "Certificate of Designations") or the ~~state securities or Blue Sky laws~~ Indenture, as the case may be; each of ~~various jurisdictions),~~ the Company and the Subsidiaries is duly qualified as a foreign entity to transact business in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property and assets or the conduct of business or otherwise, except where the failure to so qualify ~~or obtain such licenses and approvals (i)~~ would ~~have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would~~ not have a material adverse effect on the ~~Company’s ability to consummate~~ condition (financial or otherwise), results of operations, business, properties, assets or business prospects of the ~~transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement~~ Company and the ~~applicable Terms Agreement.~~Subsidiaries taken as a whole (a "Material Adverse Effect"); (c) ~~The execution, delivery and performance by the Company~~ as of the ~~Pooling and Servicing~~ date of this Agreement, the ~~Receivables Purchase Agreements, this Agreement~~ Company has an authorized and outstanding capitalization as set forth in the sections of the Registration Statement and the ~~applicable Terms Agreement~~Prospectus entitled "Capitalization" and "Description of Common Stock," and, as of the time of purchase and the ~~delivery~~ additional time of purchase, as the case may be, the Company shall have an authorized and outstanding capitalization as set forth in the sections of the ~~Collateral Certificate~~ Registration Statement and the Prospectus entitled "Capitalization," "Description of the Preferred Stock" and "Description of Common Stock" (subject, in each case, to the issuance of shares of Common Stock upon exercise of stock options disclosed as outstanding in the ~~Notes~~ Registration Statement and the ~~consummation~~ Prospectus and the grant of options under the Company's Stock Incentive Plan); all of the ~~transactions contemplated hereby~~ issued and ~~thereby~~outstanding shares of capital stock, including the Common Stock, of the Company have been duly authorized by and validly issued and are fully paid and non-assessable, have been issued in compliance with all ~~necessary limited liability company action on~~ federal and state securities laws, except for any failure to comply that could not, individually or in the ~~part of the Company. Neither the execution~~ aggregate, have a Material Adverse Effect, and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result were not issued in ~~a breach~~ violation of any preemptive right, right of first refusal or similar right; the ~~material terms and provisions of, or constitute a material default under, any~~ Certificate of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate Designations has been duly authorized and ~~when validly issued~~ approved in accordance with the ~~Pooling and Servicing Agreement~~Delaware General Corporation Law, ~~duly authenticated by~~ will be filed with the ~~Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf~~ Secretary of State of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as State of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained Delaware on or before the ~~Closing Date. (f) The Master Trust is not now~~time of purchase, ~~and following~~ requires no governmental or third party consent or approval prior to its becoming effective other than acceptance for recording by the ~~issuance~~ Secretary of State of the ~~Collateral Certificate~~State of Delaware, ~~will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to,~~ shall become effective and in full force and effect on or before the ~~reasonable belief of,~~ time of purchase and immediately subsequent to the ~~Company~~filing of the Certificate of Designations, the Company is will be duly incorporated and validly existing as a corporation in good standing under the laws of the State of Delaware; (d) all of the issued and outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable, have been issued in compliance with all federal and state securities laws, except for any failure to comply that could not, individually or in the aggregate, have a Material Adverse Effect, and were not ~~engaged (whether as defendant~~ issued in violation of any preemptive right, right of first refusal or ~~otherwise) in, nor has~~ similar right; and are owned by the Company ~~knowledge~~ either directly or through wholly-owned subsidiaries, free and clear of any liens, claims or encumbrances of any kind; the Company has no direct or indirect subsidiaries (as defined under the Act) other than the Subsidiaries, the Subsidiaries include the only significant subsidiaries of the ~~existence of~~Company as defined by Rule 1-02 of Regulation S-X and, ~~or any threat of, any legal, arbitration, administrative or other proceedings~~ except as described in the ~~result of which might have a material adverse effect on~~ Registration Statement and the ~~Collateral Certificate. (h) Except for the Underwriters~~Prospectus, the Company ~~has employed~~ does not own, directly or ~~retained no broker~~indirectly, ~~finder, commission agent or other person in connection with the sale~~ any shares of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate stock or any other ~~outstanding Certificates~~ equity or long-term debt securities of any corporation or have any equity interest in any firm, partnership, joint venture, association or other entity other than the Subsidiaries; (e) true, complete and ~~no event has occurred which would constitute (after an issue~~ correct copies of the ~~Certificates~~Restated Certificate of Incorporation (the "Certificate") a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the ~~Pooling and Servicing Agreement shall have been paid or will be paid by~~ By-laws (the ~~Company at or before the Closing Date to the extent then due. (l~~"Bylaws") ~~As of the Closing Date, the representations and warranties~~ of the Company ~~in the Pooling~~ and ~~Servicing Agreement and the Receivables Purchase Agreements will be true and correct in~~ all ~~material respects.~~ amendments (~~m) The Company was not~~including, ~~on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made~~without limitation, ~~an “ineligible issuer” as defined in Rule 405 under the Act.~~any certificates of

Appears in 1 contract

Samples: Underwriting Agreement (International Shipholding Corp)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement~~The Company hereby represents and warrants to, ~~the Company represents, warrants~~ and covenants to with, each Underwriter ~~as of the date hereof and as of the Closing Date (unless otherwise specified)~~ as follows: (a) ~~(i) A~~ The Registration Statement is an “automatic shelf registration ~~statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto~~ statement” as ~~may have been required to~~ defined under Rule 405 of the ~~date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the~~ Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. The Company has complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration Statement is in effect, the Commission has not issued any order or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company, are threatened by the Commission. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or any offering participant made a bona fide offer (~~which may have included one or more preliminary prospectuses and prospectus supplements meeting~~ within the ~~requirements~~ meaning of Rule ~~430~~ 164(h)(2) under the Securities Act) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” and is a well-known seasoned issuer, in each case as defined in Rule 405 under the Securities Act. The Company will pay the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act within the time period required by such rule (without giving effect to the proviso therein) and ~~such registration statement~~in any event prior to the Closing Date. (b) Each Preliminary Prospectus and the Prospectus when filed complied in all material respects with the Securities Act and the rules thereunder. Each of the Registration Statement and any post-effective amendment thereto, ~~as amended~~at the time it became effective and at the date hereof, ~~has become effective; such registration statement~~complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission thereunder (collectively, the “~~Rules and Regulations~~Trust Indenture Act”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not ~~include~~ and will not contain any untrue statement of a material fact or omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading and~~misleading. The Prospectus (including any Prospectus wrapper), on as amended or supplemented, as of its date, at the time of any filing pursuant to Rule 424(b) and at the Closing Date, ~~the Registration Statement and the Prospectus~~ will ~~conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include~~ not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact ~~or omit to state any material fact required to be stated therein or~~ necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (it being understood that no representation or warranty is made with respect to the omission of pricing~~ misleading. The representations and ~~price-dependent information, which information shall of necessity appear only~~ warranties set forth in the ~~final Prospectus); provided, however, that this representation and warranty shall~~ two immediately preceding sentences do not apply to ~~any~~ statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by ~~such Underwriter through~~ the ~~Representatives~~ Representative expressly for use in therein, it being understood and agreed that the ~~Preliminary Prospectus; and (v) Other than~~ only such information furnished by the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws Representative consists of the ~~Commonwealth of Virginia~~information described as such in Section 8(b) hereof. ~~The Company has, in all material respects, full power and authority~~ There is no contract or other document required to ~~own its properties and conduct its business as~~ be described in the ~~Preliminary Prospectus, and~~ Prospectus or to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect be filed as an exhibit to the ~~securities laws of any foreign jurisdiction~~ Registration Statement that has not been described or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken filed as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreementrequired. (c) The ~~execution~~documents incorporated by reference in the Prospectus, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company when they were filed with the ~~provisions hereof or thereof~~Commission, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and none of such documents, when they were so filed, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the ~~descriptions thereof contained~~ statements therein, in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as light of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered circumstances under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was they were made, ~~an “ineligible issuer” as defined in Rule 405 under the Act~~not misleading.

Appears in 1 contract

Samples: Underwriting Agreement (Mgic Investment Corp)

Representations, Warranties and Covenants of the Company. ~~Upon the execution~~ Each of the ~~applicable Terms Agreement,~~ representations and warranties (together with any related disclosure schedules thereto) and covenants made by the Company ~~represents~~to the Purchasers in the Purchase Agreement in connection with the Placement is hereby incorporated herein by reference into this Agreement (as though fully restated herein) and is, ~~warrants and covenants to each Underwriter~~ as of the date ~~hereof~~ of this Agreement and as of each Closing Date, hereby made to, and in favor of, the ~~Closing Date (unless otherwise specified) as follows~~Placement Agent. In addition to the foregoing, the Company represents and warrants that: (a) ~~(i) A~~ The Company has prepared and filed with the Commission a registration statement on Form S-3 (~~Nos~~Registration No. 333-~~130862, 000-000000-00 and 333-130862-02~~276259), ~~including~~ and amendments thereto, and related preliminary prospectuses, for the registration under the Securities Act. At the time of such filing, the Company met the requirements of Form S-3 under the Securities Act. Such registration statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule. The Company will file with the Commission pursuant to Rule 424(b) under the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated thereunder, a ~~prospectus and such amendments thereto as may have been required~~ supplement to the ~~date hereof,~~ form of prospectus included in such registration statement relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 placement of the ~~Act~~Shares and the plan of distribution thereof and has advised the Placement Agent of all further information (financial and other) ~~and such~~ with respect to the Company required to be set forth therein. Such registration statement, including the exhibits thereto, as ~~amended~~amended at the date of this Agreement, ~~has become effective~~is hereinafter called the “Registration Statement”; such ~~registration statement, as amended,~~ prospectus in the form in which it appears in the Registration Statement is hereinafter called the “Base Prospectus”; and the ~~prospectus relating to~~ supplemented form of prospectus, in the ~~sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus~~ form in which it will be filed with the Commission pursuant to Rule 424(b) of (including the ~~rules and regulations of the Commission (~~Base Prospectus as so supplemented) is hereinafter called the “~~Rules and Regulations”) under~~ Prospectus Supplement.” Any reference in this Agreement to the ~~Act), are respectively referred to herein as the “~~Registration Statement~~” and~~ , the ~~“Prospectus”; provided that a supplement to~~ Base Prospectus or the Prospectus ~~prepared pursuant to Section 7(a) of this Agreement~~ Supplement shall be deemed to ~~have supplemented~~ refer to and include the documents incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus ~~only with respect~~ Supplement, as the case may be; and any reference in this Agreement to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied terms “amend,” “amendment” or “supplement” with respect to the Registration Statement~~; (ii) As~~ , the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the ~~Closing Date~~Base Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,” “described,” “referenced,” “set forth” or “stated” in the Registration Statement, the ~~Preliminary~~ Base Prospectus or the Prospectus Supplement (and ~~the Prospectus, except with respect to any modification to which the Representatives have agreed in writing,~~ all other references of like import) shall be in deemed to mean and include all ~~substantive respects in the form furnished to the Representatives before~~ such ~~date or, to the extent not completed on such date, shall contain only such specific additional information~~ financial statements and schedules and other ~~changes (beyond that contained~~ information which is or is deemed to be incorporated by reference in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the ~~Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact~~ Base Prospectus or ~~omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and~~ the Prospectus ~~will conform in all material respects with~~ Supplement, as the ~~applicable requirements of~~ case may be. No stop order suspending the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation effectiveness of the Registration Statement or the ~~Prospectus; (iv) The Preliminary~~ use of the Base Prospectus at or the ~~Time of Sale did not~~Prospectus Supplement has been issued, and ~~at the Closing Date will not~~no proceeding for any such purpose is pending or has been initiated or, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the ~~omission~~ Company’s knowledge, is threatened by the Commission. For purposes of ~~pricing and price-dependent information~~this Agreement, ~~which information shall of necessity appear only in~~ “Free Writing Prospectus” has the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined meaning set forth in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement Securities Act and the ~~applicable Terms Agreement and to authorize~~ “Time of Sale Prospectus” means the ~~sale of the Notes~~preliminary prospectus, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company together with the ~~provisions hereof or thereof~~Free Writing Prospectuses, ~~will (i) conflict with or result in a breach of any of the material terms and provisions of~~if any, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required used in connection with the ~~valid and proper authorization~~Placement, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Dateincluding any documents incorporated by reference therein. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Securities Purchase Agreement (Kartoon Studios, Inc.)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about May 7, 2013 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (n) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement~~The Company represents and warrants to, and agrees with, the ~~Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows~~Sales Agent that: (a) The Company has prepared the Registration Statement in conformity with the requirements of the Securities Act of 1933, as amended (~~i) A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02~~the "Securities Act"), ~~including a prospectus~~ and ~~such amendments thereto as may have been required to~~ the ~~date hereof, relating to~~ Rules and Regulations (the ~~offering~~ "Rules and Regulations") of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Commission thereunder and has ~~been~~ filed the Registration Statement with the ~~Commission (which may have included one or more~~ Commission. Copies of the Registration Statement, including any amendments thereto, the preliminary prospectuses ~~and prospectus supplements~~ (meeting the requirements of ~~Rule 430 of~~ the ~~Act~~Rules and Regulations) contained therein and ~~such registration statement~~the exhibits, financial statements, and schedules, as ~~amended~~finally amended and revised, have heretofore been made available by the Company to the Sales Agent. The Registration Statement, which shall be deemed to include all information omitted therefrom in reliance upon Rule 430A and contained in the Prospectus referred to below, has become ~~effective; such registration statement, as amended,~~ effective under the Act and ~~the prospectus relating~~ no post-effective amendment to the ~~sale~~ Registration Statement has been filed as of the ~~Notes offered thereby constituting a part thereof, as from time to time amended or supplemented~~ date of this Agreement. "Prospectus" means (~~including any~~ i) the form of prospectus first filed with the Commission pursuant to Rule 424(b) or (ii) the last preliminary prospectus included in the Registration Statement filed prior to the time it becomes effective or filed pursuant to Rule 424(a) under the Act that is delivered by the Company to the Sales Agent for delivery to purchasers of the ~~rules and regulations of~~ Shares, together with the term sheet or abbreviated term sheet filed with the Commission ~~(the “Rules and Regulations”~~pursuant to Rule 424(b)(7) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Selling Agent Agreement (Tumbleweed Inc)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about [ ] (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) Except as described in the Disclosure Materials, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of any Program Agreement to which it is a party, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth in any Program Agreement to which it is a party, which if adversely determined would materially and adversely affect the Collateral Certificate or the Notes, or the validity or enforceability of such Program Agreement, or (C) seeking adversely to affect the United States Federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary – Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (e) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (ef) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. ~~When executed and delivered by the parties thereto, each~~ Each of the Pooling and Servicing Agreement, the Transfer Agreement and the Receivables Purchase ~~Agreements will constitute~~ Agreement constitutes a ~~legal,~~ valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of or filings with any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the consummation of the transactions set forth in the Program Agreements, the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (fi) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. (gii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Company has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act. (h) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (hi) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (ij) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (jk) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (kl) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (lm) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (mn) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (o) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes. (p) The Company has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act 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 Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Master Trust)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Time of Sale Information, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Time of Sale Information that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (~~iii~~A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than the issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed with the Commission in accordance with Rule 433 under the Act on or about January 23, 2013 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Time of Sale Information, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (n) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement~~The Company acknowledges, represents and warrants to, and agrees with, the ~~Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows~~Investors that: (a) The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Oregon and has full corporate power and authority to own and use its properties and its assets and conduct its business as currently conducted. The Company is not in violation of any of the provisions of its Second Amended and Restated Articles of Incorporation, as may be amended from time to time (the “Restated Articles”), or its Amended and Restated By-laws (the “Bylaws”) or other organizational or charter documents. The Company is duly qualified to conduct business and is in good standing as a foreign corporation in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not result in a direct and/or indirect (i) A material adverse effect on the legality, validity or enforceability of any of the Shares and/or this Subscription Agreement, (ii) material adverse effect on the results of operations, assets, business or condition (financial and other) of the Company, or (iii) material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Subscription Agreement (any of (i), (ii) or (iii), a “Material Adverse Effect”). (b) The Company has prepared and filed in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities Act”), and published rules and regulations thereunder adopted by the SEC, a “shelf” registration statement on Form S-3 (~~Nos~~File No. 333-~~130862~~227683), ~~000-000000-00 and 333-130862-02)~~which became effective on October 17, 2018, including a base prospectus relating to the securities registered pursuant to such registration statement, and such amendments and supplements thereto as may have been required to the date ~~hereof~~of this Subscription Agreement, ~~relating~~ including but not limited to, the prospectus supplement dated December 2018. The Company is not aware of any fact, condition or circumstance that could reasonably be expected to have a Material Adverse Effect that has not been previously disclosed in the ~~offering of notes as described therein from time to time~~ Disclosure Package. Furthermore, no representation or warranty or other statement made by the Company in ~~accordance with Rule 415 under~~ this Agreement, the ~~Act has been filed~~ Disclosure Package or otherwise in connection with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include transactions contemplated hereby contains any untrue statement of material fact or omits to state a material fact ~~or omit to state any material fact required to be stated therein or~~ necessary to make ~~the~~ such statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) All of the issued and outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable. All of such outstanding capital stock has been issued in compliance with applicable federal and state securities laws. The ~~execution~~issuance and sale of the Shares as contemplated hereby will not obligate the Company to issue shares of common stock or other securities to any other person (other than the Investor) and will not result in the adjustment of the exercise, ~~delivery~~ conversion, exchange or reset price of any outstanding security. (d) The Company has all corporate right, power and ~~performance~~ authority to enter into, execute and deliver this Subscription Agreement and each other agreement, document, instrument and certificate to be executed by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and in connection with the consummation of the transactions contemplated hereby and ~~thereby, have been duly authorized by all necessary limited liability company action on the part of the Company~~to perform fully its obligations hereunder and thereunder. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this This Subscription Agreement ~~and the applicable Terms Agreement. (e) The Collateral Certificate~~ has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the ~~parties thereto, each of the Pooling~~ Company and ~~Servicing Agreement and the Receivables Purchase Agreements will constitute~~ constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except ~~to the extent that the~~ as enforceability ~~thereof~~ may be ~~subject to~~ limited by applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar ~~occurrence~~ laws affecting ~~the Company~~ creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of ~~equity. All approvals, authorizations, consents, orders~~ equity (regardless of whether such enforceability is considered in a proceeding in equity or ~~other actions~~ at law) and except as to the enforceability of any ~~person~~rights to indemnification or contribution that may be violative of the public policy underlying any law, ~~corporation~~ rule or ~~other organization,~~ regulation (including any federal or ~~of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the~~ state securities law, rule or ~~Blue Sky laws of various jurisdictions~~regulation). The Shares are duly authorized and, ~~required~~ when issued and paid for in ~~connection~~ accordance with the ~~valid~~ applicable transaction documents, will be duly and ~~proper authorization~~validly issued, fully paid and nonassessable, free and clear of all encumbrances. (e) The execution and delivery by the Company of this Subscription Agreement and the issuance and sale of the ~~Notes pursuant~~ Shares, Warrant and Note do not and will not (i) result in the violation of any law, statute, rule, regulation, order, writ, injunction, judgment or decree of any court or governmental authority to ~~this Agreement~~ or by which the Company is bound including without limitation all foreign, federal, state and local laws applicable to its business and all such laws that affect the ~~applicable Terms Agreement~~environment, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect, (ii) conflict with or violate any provision of the Company’s Restated Articles or the Company’s Bylaws, and (iii) conflict with, or ~~the issuance and transfer~~ result in a material breach or violation of, any of the ~~Collateral Certificate pursuant~~ terms or provisions of, or constitute (with or without due notice or lapse of time or both) a default or give to others any rights of termination, amendment, acceleration or cancellation (with or without due notice, lapse of time or both) under any agreement, credit facility, lease, loan agreement, mortgage, security agreement, trust indenture or other agreement or instrument to which the ~~Pooling and Servicing Agreement~~Company is a party, nor result in the creation or imposition of any encumbrances upon any of the properties or assets of the Company, except in each case as could not have ~~been~~ or ~~will~~ reasonably be ~~taken or obtained on or before the Closing Date~~expected to result in a Material Adverse Effect. (f) ~~The Master Trust is not now, and following~~ No approval by the ~~issuance~~ holders of the ~~Collateral Certificate, will not be,~~ Company’s common stock or other equity securities of the Company is required to be ~~registered under~~ obtained by the ~~0000 Xxx~~Company in connection with the authorization, execution, delivery and performance of this Subscription Agreement or in connection with the authorization, issue and sale of the Shares, Warrant and Note. (g) ~~Based on information currently available to~~No consent, approval, authorization or other order of any governmental authority or any other third party is required to be obtained by the Company in connection with the authorization, execution, delivery and performance of this Subscription Agreement or in connection with the ~~reasonable belief of~~authorization, issue and sale of the Shares, Warrant and Note except for such post-sale filings as may be required to be made with the NASDAQ Capital Market, the ~~Company~~SEC and with any state securities regulatory authority, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result all of which ~~might have a material adverse effect on the Collateral Certificate~~shall be made when required. (h) ~~Except for~~ No action, suit, litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the ~~Underwriters~~knowledge of the Company, threatened by or against the Company ~~has employed~~ or ~~retained no broker, finder, commission agent~~ against any of its property or ~~other person in connection~~ assets (i) with respect to the ~~sale~~ Subscription Agreement or any Other Investor Agreements or any of the ~~Notes~~transactions contemplated hereby or thereby, ~~and neither the Company nor the Issuer are under any obligation~~ or (ii) that could reasonably be expected to ~~pay any broker’s fee or commission in connection with such sale~~have a Material Adverse Effect. (i) ~~No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation~~ to the ~~Collateral Certificate~~ Company’s knowledge: (i) the Company Intellectual Property as currently licensed or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, used by the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the ~~Pooling~~ Company's conduct of its business as currently conducted, do not infringe, misappropriate or otherwise violate the Intellectual Property of any Person; and ~~Servicing Agreement shall have been paid~~ (ii) no Person is infringing, misappropriating or ~~will be paid by the~~ otherwise violating any Company ~~at or before the Closing Date to the extent then due~~Intellectual Property. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Subscription Agreement (Arcimoto Inc)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement~~ The Registration Statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02), including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement~~The Company represents and warrants to, and covenants with, the ~~Company represents~~Investor, ~~warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified)~~ as follows: 3.1 The Company has filed with the Securities and Exchange Commission (athe “Commission”) ~~(i) A~~ a “shelf” registration statement on Form S-3 (~~Nos~~Registration No. ~~333-130862, 000-000000-00 and 333-130862-02~~333-________), ~~including a prospectus and such amendments thereto as may have been required to the date hereof~~which has become effective, relating to the ~~offering~~ Common Stock of ~~notes as described therein from time to time in accordance with Rule 415~~ the Company, under the U.S. Securities Act ~~has been filed with~~ of 1933, as amended (the “Act”), and the rules and regulations (collectively referred to as the “Rules and Regulations”) of the Commission ~~(which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and such~~ promulgated thereunder. The registration statement, as ~~amended~~amended as of the date of this Agreement, including the exhibits and information (if any) deemed to be part of the registration statement pursuant to Rule 430A or 434(d) under the Act, is hereinafter referred to as the “Registration Statement.” No stop order suspending the effectiveness of the Registration Statement has ~~become effective; such registration statement~~been issued and, ~~as amended, and the prospectus relating~~ to the ~~sale~~ Company’s knowledge, no proceeding for that purpose has been initiated or threatened by the Commission. The Company, if required by the Rules and Regulations of the ~~Notes offered thereby constituting a part thereof~~Commission, proposes to file the Prospectus (as ~~from time~~ defined below) with the Commission pursuant to ~~time amended or supplemented (including any prospectus~~ Rule 424(b) of the Rules and Regulations. The Prospectus, in the form in which it is to be filed with the Commission pursuant to Rule 424(b) of the ~~rules and regulations of the Commission (the “~~Rules and Regulations~~”) under~~ , or, if the ~~Act~~Prospectus is not to be filed with the Commission pursuant to Rule 424(b), ~~are respectively~~ the Prospectus in the form included as part of the Registration Statement at the time the Registration Statement became effective, is hereinafter referred to ~~herein~~ as the “Prospectus,” except that if any revised prospectus or prospectus supplement shall be provided to the Placement Agent by the Company for use in connection with the offering and sale of the Shares that differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term “Prospectus” shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the Placement Agent for such use. Any preliminary prospectus or prospectus subject to completion included in the Registration Statement or filed with the Commission pursuant to Rule 424 under the Act is hereafter called a “Preliminary Prospectus.” Any reference herein to the Registration Statement~~” and the “Prospectus”; provided that a supplement to~~ , any Preliminary Prospectus or the Prospectus ~~prepared pursuant to Section 7(a) of this Agreement~~ shall be deemed to ~~have supplemented~~ refer to and include the ~~Prospectus only with respect~~ documents incorporated by reference therein pursuant to ~~the offering~~ Item 12 of ~~the Notes to which it relates; and the conditions to the use of a registration statement on~~ Form S-3 that were filed under the ~~Act~~U.S Securities Exchange Act of 1934, as ~~set forth in~~ amended (the ~~General Instructions~~ “Exchange Act”), on or before the last to ~~Form S-3, and the conditions~~ occur of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the date of the Preliminary Prospectus, or the date of the Prospectus, and any references herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include (i) the filing of any document under the Exchange Act after the effective date of the Registration Statement, the date of such Preliminary Prospectus or the date of the Prospectus, as the case may be, that is incorporated therein by reference and (ii) any such document so filed. 3.2 As of the date hereof, and at the Closing, the Registration Statement ~~conformed~~ (and any post-effective amendment thereto) and the Prospectus (as amended or as supplemented if the Company shall have filed with the Commission any amendment or supplement to the Registration Statement or the Prospectus) complied and will comply in all material respects with ~~the applicable requirements of~~ the Act and the Rules and Regulations, and did not ~~include~~ and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances under which they were made, in the case of the Prospectus) not ~~misleading and~~misleading, on each Preliminary Prospectus, as of the ~~Closing Date, the Registration Statement and the Prospectus will conform in all material respects~~ date filed with the ~~applicable requirements of the Act and the Rules and Regulations~~Commission, ~~and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein~~ did not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (it being understood~~ misleading; except that no representation or warranty is made in this Section 3.2 with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with written information ~~relating to any Underwriter~~ furnished to the Company ~~in writing~~ by ~~such Underwriter through~~ the ~~Representatives~~ Placement Agent expressly for ~~use~~ inclusion in ~~the~~ any Preliminary Prospectus~~; and~~ , the Registration Statement, or the Prospectus, or any amendment or supplement thereto, it being understood and agreed upon that the only such information furnished to the Company consists of the following: the statements set forth (vi) ~~Other than~~ under paragraphs [__] and [__] under the heading “Plan of Distribution,” and (ii) the name of the Placement Agent on the cover page and on the back cover in any Preliminary Prospectus and the Prospectus. 3.3 The consolidated financial statements and related notes thereto included or incorporated by reference in the Registration Statement and the Prospectus comply with the applicable requirements of the Act and the Exchange Act, as applicable, and present fairly the consolidated financial position of the Company as of the dates indicated (~~including~~ and its ~~agents~~ consolidated results of operations and ~~representatives~~ its consolidated cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby (except as otherwise stated therein and subject, in the case of unaudited financial statements, to the absence of footnotes and normal year-end adjustments); and the other ~~than~~ financial information included or incorporated by reference in the ~~Underwriters in their capacity as such)~~ Registration Statement and the Prospectus has ~~not made, used, prepared, authorized, approved or referred to~~ been derived from the accounting records of the Company [and ~~will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under~~ its Subsidiary] and presents fairly the ~~Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~information shown thereby. ~~(b)~~ 3.4 The Company ~~has been~~ [and its subsidiaries listed in the Company’s Annual Report on Form 10-K for the fiscal year ended [Month] __, 201_ (the “Subsidiaries”) are each][is] duly ~~organized and is~~ organized, validly existing as a ~~Virginia limited liability company~~ corporation and in good standing under the laws of ~~the Commonwealth~~ [their respective][its] jurisdictions of ~~Virginia~~organization. The Company ~~has~~[and its Subsidiaries are each][is] duly licensed or qualified as a foreign corporation for transaction of business and in good standing under the laws of each other jurisdiction in which [their respective][its] ownership or lease of property or the conduct of [their respective][its] business[es] requires such license or qualification, in and [have][has] all ~~material respects, full~~ corporate power and authority necessary to own ~~its~~ or hold their respective properties and to conduct ~~its business~~ their respective businesses as described in the ~~Preliminary~~ Registration Statement and the Prospectus, ~~and~~ except where the failure to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly be so qualified ~~to do business and is~~ or in good standing (or ~~is exempt from~~ have such ~~requirements)~~power or authority would not, ~~and has obtained all necessary material licenses and approvals (except with respect to~~ individually or in the ~~securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions)~~aggregate, ~~in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would~~ have a material adverse effect ~~on each of the Company and its subsidiaries (if any), taken as a whole,~~ or ~~(ii)~~ would reasonably be expected to have a material adverse effect on the ~~Company’s ability to consummate~~ business, properties, management, consolidated financial position, stockholders’ equity or results of operations of the ~~transactions~~ Company [and its Subsidiaries taken as a whole]. 3.5 The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and nonassessable and, other than as disclosed in or contemplated by the ~~Pooling~~ Registration Statement or the Prospectus, are not subject to any preemptive or similar rights. The Company has an authorized, issued and ~~Servicing Agreement~~outstanding capitalization as set forth in the Registration Statement and the Prospectus as of the dates referred to therein (other than the grant of additional options under the Company’s existing stock option plans, or changes in the number of outstanding shares of Common Stock of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into, shares of Common Stock outstanding on the date hereof, [including without limitation issuances of shares under the Company’s employee stock purchase plan] and such authorized capital stock conforms to the description thereof set forth in the Registration Statement and the Prospectus. The description of the securities of the Company in the Registration Statement and the Prospectus is complete and accurate in all material respects. Except as disclosed in or contemplated by the Registration Statement or the Prospectus, the ~~Receivables Purchase Agreements~~Company does not have outstanding any options to purchase, ~~this Agreement and the applicable Terms Agreement~~or any rights or warrants to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments to issue or sell, any shares of capital stock or other securities. ~~(c)~~ 3.6 The ~~execution, delivery and performance~~ Shares have been duly authorized by the Company of and, when issued and delivered and paid for as provided herein, will be validly issued, fully paid and nonassessable and will conform to the ~~Pooling and Servicing Agreement,~~ descriptions thereof in the ~~Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate~~ Prospectus; and the issuance of the ~~Notes and the consummation of the transactions contemplated hereby and thereby,~~ Shares is not subject to any preemptive or similar rights that have not been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrumentwaived. ~~(d) The Company has duly executed and delivered this~~ 3.7 This Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute constitutes a ~~legal,~~ valid and binding obligation of the ~~Company,~~ Company enforceable against the Company in accordance with its terms, except ~~to the extent that the~~ as enforceability ~~thereof~~ may be ~~subject to~~ limited by applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar ~~occurrence~~ laws affecting ~~the Company~~ creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of ~~equity. All approvals, authorizations, consents, orders~~ equity (regardless of whether such enforceability is considered in a proceeding in equity or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictionsat law), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Investor Purchase Agreement for Registered Direct Offering

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company represents, ~~warrants~~ warrants, covenants and ~~covenants~~ agrees to ~~each Underwriter~~ and with the Agent that as of the date hereof and ~~as of~~ the Closing ~~Date (unless otherwise specified) as follows~~Date: (a) ~~(i) A registration statement on Form S-3 (Nos. 333-130862~~The Company is at the Closing Time will be, ~~000-000000-00~~ a Foreign Issuer and ~~333-130862-02), including a prospectus and such amendments thereto as may have been required to~~ reasonably believes at the date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 commencement of the Act) and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did notOffering there was, and at the Closing ~~Date~~ Time there will ~~not~~be, ~~include~~ no Substantial U.S. Market Interest in the Unit Shares, Warrants or Warrant Shares. (b) For so long as the Unit Shares, Warrants and Warrant Shares underlying the Warrants, which have been sold in the United States pursuant hereto, are "restricted securities" within the meaning of Rule 144(a)(3) under the U.S. Securities Act ("Restricted Securities") and may not be resold pursuant to Rule 144(b)(1) thereunder, and if the Company is neither (i) subject to and in compliance with the reporting requirements of Section 13 or 15(d) of the U.S. Exchange Act nor (ii) exempt from such reporting requirements pursuant to Rule 12g3-2(b) thereunder, the Company shall provide to any ~~untrue statement~~ holders of ~~a material fact~~ the Restricted Securities which have been sold in the United States pursuant hereto, or ~~omit~~ to ~~state~~ any ~~material fact~~ prospective purchasers of such Restricted Securities designated by such holders, upon request of such holders or prospective purchasers, at or prior to the time of resale, the information required to be ~~stated therein~~ provided by Rule 144A(d)(4) under the U.S. Securities Act (so long as such information is necessary in order to permit holders of the Restricted Securities to effect resales under Rule 144A). (c) Except with respect to sales in accordance with this Schedule D to Qualified Institutional Buyers in reliance upon an exemption from registration available under Section 4(a)(2) of the U.S. Securities Act and Rule 506(b) of Regulation D thereunder, neither the Company nor any of its affiliates, nor any person acting on its or ~~necessary to make~~ their behalf (other than the ~~statements therein~~Agent, its respective affiliates or any person acting on its behalf, in ~~light~~ respect of which no representation is made), has made or will make: (A) any offer to sell, or any solicitation of an offer to buy, any Units to, or for the account of, a person in the United States, unless such offeree was an "accredited investor" as defined in Rule 501(a) under the U.S. Securities Act or a Qualified Institutional Buyer; or (B) any sale of Units unless, at the time the buy order was or will have been originated, the purchaser is (i) outside the United States or (ii) the Company, its affiliates, and any person acting on their behalf reasonably believe that the purchaser is outside the United States. (d) Neither the Company nor any of its affiliates, nor any person acting on their behalf (other than Agent, the U.S. Affiliate, or any members of the ~~circumstances under which they were made~~selling group formed by them, ~~not misleading~~ as to whom the Company makes no representation, warranty, covenant or agreement) has engaged or will engage in any Directed Selling Efforts that would cause the exclusion from registration afforded by Rule 903 of Regulation S to be unavailable for offers and sales of Common Shares outside of the United States in accordance with the Agency Agreement or in any form of General Solicitation or General Advertising or in any manner involving a public offering within the meaning of Section 4(a)(2) of the U.S. Securities Act with respect to offers or sales of the Units in the United States. (~~it being understood that no representation or warranty is made~~ e) Except with respect to the ~~omission~~ offer and sale of ~~pricing and price-dependent information, which information shall of necessity appear only in~~ the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the ProspectusUnits offered hereby, the Company has not, for a period of six months prior to the commencement of the offering of the Units, sold, offered for sale or solicited any offer to buy any of its securities in the United States in a manner that would be integrated with the offer and sale of the Units and that would cause the exemption from registration set forth in Section 4(a)(2) of the U.S. Securities Act and Rule 506(b) of Regulation D thereunder to become unavailable with respect to the offer and sale of the Units as contemplated herein. (~~including~~ f) The Company is not now, and as a result of the sale of the Units and the application of the proceeds thereof contemplated hereby will not be, registered or required to be registered as an "investment company" under Section 8 of the United States Investment Company Act of 1940, as amended and the rules and regulations promulgated thereunder. (g) Neither the Company nor any of its ~~agents and representatives~~ affiliates, nor any person acting on their behalf (other than the ~~Underwriters in their capacity~~ Agent, the U.S. Affiliate, or any members of the selling group formed by them, as ~~such~~to whom the Company makes no representation) has engaged or will engage in any violation of Regulation M under the U.S. Exchange Act in connection with the Offering. (h) None of the Company or its affiliates has been subject to any order, judgment or decree of any court of competent jurisdiction temporarily, preliminarily or permanently enjoining that person for failure to comply with Rule 503 of Regulation D under the U.S. Securities Act. (i) None of the Company, its affiliates or any person acting on its or their behalf (other than the Agent, the U.S. Affiliate, or any members of the selling group formed by them, as to whom the Company makes no representation, warranty, covenant or agreement) have taken, or will take, any action that would cause any applicable exemptions or exclusions from the registration requirement of the U.S. Securities Act, including those available under Rule 903 of Regulation S, or Rule 506(b) of Regulation D, to be unavailable for the offer and sale of the Units pursuant to the Agency Agreement. (j) The Company will, within prescribed time periods, prepare and file any forms or notices required to be filed under the U.S. Securities Act or applicable Blue Sky laws in connection with the offer and sale of the Units in the United States. (k) The Company has not ~~made~~offered or sold, ~~used, prepared, authorized, approved or referred to~~ and will not ~~prepare~~offer or sell, ~~make, use, authorize, approve or refer~~ the Units to any ~~“written communication”~~ person other than the Agent and its U.S. Affiliate. (l) None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering of the Units, any beneficial owner of 20% or more of the Company's outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the U.S. Securities Act) ~~that constitutes an offer to sell or solicitation~~ connected with the Company in any capacity at the time of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the ~~Notes~~Units (but excluding the Agent, ~~and to consummate the transactions contemplated by the Pooling and Servicing Agreement~~its U.S. Affiliate, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default undertheir affiliates, any ~~of the provisions of the limited liability company agreement of the Company~~selling group member and any person acting on their behalf, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument as to which the Company makes no representation, warranty, covenant or agreement) (each, an "Issuer Covered Person" and, together, "Issuer Covered Persons") is ~~a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon~~ subject to any of the ~~Company’s property pursuant~~ "Bad Actor" disqualifications described in Rule 506(d)(1)(i) to ~~the terms~~ (viii) of ~~any such indenture~~Regulation D (a "Disqualification Event"), ~~mortgage, contract~~ except for a Disqualification Event covered by Rule 506(d)(2) or ~~other instrument.~~ (dd)(3) of Regulation D. The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organizationexercised, or ~~of any court, governmental agency or body or official (except with respect~~ will exercise prior to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied or will comply prior to the ~~representations~~ Closing Date, to the extent applicable, with its disclosure obligations under Rule 506(e) of Regulation D, and ~~warranties of~~ has furnished to the ~~Company in the Pooling and Servicing Agreement~~ Agent and the ~~Receivables Purchase Agreements will be true and correct in all material respects~~U.S. Affiliate a copy of any disclosures provided thereunder. (m) The Company ~~was not~~is not aware of any person (other than any Issuer Covered Person or Dealer Covered Person) that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of any Units. (n) The Company will notify the Agent and the U.S. Affiliate, on in writing, prior to the ~~date on which~~ Closing Date, of (i) any Disqualification Event relating to any Issuer Covered Person and (ii) any event that would, with the ~~first bona fide offer~~ passage of time, become a Disqualification Event relating to any Issuer Covered Person. (o) If the Company determines that it is a "passive foreign investment company" within the meaning of section 1297(a) of the ~~Notes sold~~ Internal Revenue Code (the "Code") during any calendar year following the purchase of Common Shares pursuant to this Agency Agreement by a Qualified Institutional Buyer, the Company shall use commercially reasonable efforts to, upon written request, provide to the purchaser all information that would be required for income tax reporting purposes by a United States shareholder making an election to treat the Company as a "qualified electing fund" for the purposes of the Code. In connection with the private placement in the United States of the units (the "Units" and, for greater certainty, including any Unit Shares and Warrants issued pursuant to the ~~applicable Terms Agreement was made, an “ineligible issuer”~~ exercise of the Over-Allotment Option (as such terms are defined in the Agency Agreement) (as defined below)) in ~~Rule 405 under~~ the ~~Act.~~capital of Nutritional High International Inc. (the "Company") pursuant to the Agency Agreement dated January 29, 2015 between the Company and the Agent named therein (the "Agency Agreement"), each of the undersigned does hereby certify as follows:

Appears in 1 contract

Samples: Agency Agreement

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (~~a) (~~i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about November 15, 2021 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) Except as described in the Disclosure Materials, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of any Program Agreement to which it is a party, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth in any Program Agreement to which it is a party, which if adversely determined would materially and adversely affect the Collateral Certificate or the Notes, or the validity or enforceability of such Program Agreement, or (C) seeking adversely to affect the United States Federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary—Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (e) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (ef) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. ~~When executed and delivered by the parties thereto, each~~ Each of the Pooling and Servicing Agreement, the Transfer Agreement and the Receivables Purchase ~~Agreements will constitute~~ Agreement constitutes a ~~legal,~~ valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of or filings with any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with consummation of the transactions set forth in the Program Agreements, the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (fi) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. (gii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Company has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act. (h) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (hi) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (ij) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (jk) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (kl) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (lm) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (mn) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (o) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes. (p) The Company has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act 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 Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company hereby represents, warrants and covenants to each ~~Underwriter~~ Purchaser as follows, on and as of (i) the date of this Agreement, (ii) the Closing Date, and (iii) each Option Closing Date: Accuracy of Reports. All reports required to be filed by the Company since and including the filing of the Company's Form 10-K for the fiscal year ended February 28, 2003 (collectively, the "SEC Reports") have been duly filed with the Securities and Exchange Commission, except (i) certain of the SEC Reports were filed late and (ii) as of the date ~~hereof~~ of this Agreement, the Company has not filed its Form 10-Q for the quarter ended May 31, 2004 which report will also be late. Except as set forth in the Schedule of Exceptions attached as Exhibit C to the Amendment and Conversion Agreement (as hereinafter defined): as of their respective dates, the Closing Date (unless otherwise specified) as follows: (a) (i) A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of notes as described therein from time to time SEC Reports complied in ~~accordance~~ all material respects with ~~Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting~~ the requirements of ~~Rule 430 of~~ the Securities Act or the Securities Exchange Act~~) and such registration statement~~, as ~~amended, has become effective; such registration statement, as amended~~the case may be, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Securities and Exchange Commission ~~(the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement~~ promulgated thereunder applicable to the ~~Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering~~ SEC Reports; none of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that SEC Reports contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or ~~omit~~ omitted to state ~~any~~ a material fact required to be stated therein or necessary ~~to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform~~ in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus)misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each financial statements of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result included in the ~~creation or imposition~~ SEC Reports complied as of ~~any lien, charge or encumbrance upon any~~ their respective dates of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform filing in all material respects to with applicable accounting requirements and the ~~descriptions thereof contained in~~ published rules and regulations of the ~~Preliminary Prospectus~~ Securities and ~~will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will~~ Exchange Commission with respect thereto, have been ~~authorized and effected~~ prepared in accordance with generally accepted accounting principles (except, in the ~~Pooling~~ case of unaudited statements, as permitted by Regulation S-X promulgated by the Securities and ~~Servicing Agreement~~ Exchange Commission) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto), and fairly present the financial position of the Company as of the ~~applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement~~ dates thereof and the ~~Receivables Purchase Agreements will constitute a legal~~results of its operations and cash flows for the periods then ended (subject, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the ~~event~~ case of ~~the insolvency~~unaudited statements, ~~liquidation or reorganization or other similar occurrence with respect~~ to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictionsnormal year-end audit adjustments), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Securities Purchase Agreement (Icm Asset Management Inc/Wa)

Representations, Warranties and Covenants of the Company. ~~Upon~~ As of the date and time of the execution of this Agreement, each Closing Date and the ~~applicable Terms~~ Initial Sale Time, and any representation made by the Company to the Placement Agent regardless of whether such representation was made prior to the execution of this Agreement, the Company represents, warrants and covenants to ~~each Underwriter as of~~ the ~~date hereof and as of the Closing Date (unless otherwise specified) as follows~~Placement Agent that: i. The Company has filed with the Securities and Exchange Commission (athe "Commission") ~~(i) A~~ a registration statement on Form S-3 (~~Nos~~File No. 333-~~130862~~196243) including a related prospectus, ~~000-000000-00 and 333-130862-02~~for the registration of certain securities (the "Shelf Securities"), including ~~a prospectus and such amendments thereto as may have been required to~~ the ~~date hereof~~Securities, ~~relating to the offering of notes as described therein from time to time in accordance with Rule 415~~ under the Securities Act, and the rules and regulations thereunder (the "Securities Act Regulations"). The registration statement has been ~~filed with~~ declared effective under the ~~Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting~~ Securities Act by the ~~requirements of Rule 430 of the Act) and such~~ Commission. The registration statement, as ~~amended~~of any time, ~~has become effective;~~ means such registration ~~statement~~statement as amended by any post-effective amendments thereto to such time, ~~as amended~~including the exhibits and any schedules thereto at such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the Securities Act and the ~~prospectus relating~~ documents otherwise deemed to ~~the sale of the Notes offered thereby constituting~~ be a part ~~thereof,~~ thereof as ~~from~~ of such time ~~to time amended or supplemented (including any prospectus filed with the Commission~~ pursuant to Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 430B under the ~~Act~~Securities Act Regulations ("Rule 430B"), ~~are respectively~~ is referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the "Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; " provided, however, that the ~~foregoing does not apply~~ "Registration Statement" without reference to ~~information contained in or omitted from either~~ a time means such registration statement as amended by any post-effective amendments thereto as of the ~~documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation~~ time of the ~~Registration Statement or~~ first contract of sale for the ~~Prospectus; (iv) The Preliminary Prospectus at~~ Securities, which time shall be considered the ~~Time~~ "new effective date" of ~~Sale did not, and at the Closing Date will not, include any untrue~~ such registration statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the ~~omission~~ Securities within the meaning of ~~pricing~~ paragraph (f)(2) of Rule 430B, including the exhibits and ~~price-dependent information~~schedules thereto as of such time, ~~which information shall~~ the documents incorporated or deemed incorporated by reference therein at such time pursuant to Item 12 of ~~necessity appear only in~~ Form S-3 under the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus Securities Act and the ~~Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity~~ documents otherwise deemed to be a part thereof as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property time pursuant to the ~~terms of any such indenture, mortgage, contract or other instrument. (d~~Rule 430B. Any registration statement filed pursuant to Rule 462(b) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the ~~Issuer pursuant to~~ Securities Act Regulations is hereinafter called the ~~Trust Agreement, will conform in all material respects to~~ "Rule 462(b) Registration Statement," and after such filing the ~~descriptions thereof contained in~~ term "Registration Statement" shall include the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions462(b), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Placement Agency Agreement (Cel Sci Corp)

Representations, Warranties and Covenants of the Company. ~~Upon~~ The Company hereby represents and warrants to the ~~execution of~~ Underwriter as follows and acknowledges that the ~~applicable Terms Agreement~~Underwriter is relying upon such representations, ~~the Company represents, warrants~~ warranties and covenants ~~to each Underwriter as~~ in connection with its execution and delivery of ~~the date hereof and as of the Closing Date (unless otherwise specified) as follows~~this Agreement: (a~~) (i~~) A registration statement on Form ~~S-3~~ S-1 (~~Nos~~No. 333-~~130862~~155227) with respect to the Firm Shares, ~~000-000000-00~~ the Directed Shares, and ~~333-130862-02~~the Additional Shares has (i) been prepared by the Company in conformity with the requirements of the United States Securities Act of 1933, as amended (the “Securities Act”), ~~including a prospectus~~ and ~~such amendments thereto as may have been required to~~ the ~~date hereof~~rules and regulations (the “Rules and Regulations”) of the United States Securities and Exchange Commission (the “Commission”) thereunder, ~~relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has~~ (ii) been filed with the Commission under the Securities Act (~~which may~~ iii) been amended as necessary pursuant to any comments received from the Commission and (iv) the Final Registration Statement containing the Final Prospectus has become effective under the Securities Act. Copies of such registration statement and the amendments thereto have ~~included one or more preliminary prospectuses~~ been delivered by the Company to the Underwriter. At any particular time, this initial registration statement, in the form then on file with the Commission, including all information contained in the registration statement (if any) pursuant to Rule 462(b) and ~~prospectus supplements meeting the requirements of Rule 430~~ then deemed to be a part of the ~~Act) and such~~ initial registration statement, and all 430A Information and all 430C Information, that in any case has not then been superseded or modified, shall be referred to as the “Initial Registration Statement”. The Company may also have filed, or may file with the Commission, a Rule 462(b) registration statement covering the registration of Offered Securities. At any particular time, this Rule 462(b) registration statement, in the form then on file with the Commission, including the contents of the Initial Registration Statement incorporated by reference therein and including all 430A Information and all 430C Information, that in any case has not then been superseded or modified, shall be referred to as the “Additional Registration Statement”. As used in this Agreement, “Registration Statement” means the Initial Registration Statement, as amended, ~~has become effective; such registration statement~~the Final Registration Statement and any Additional Registration Statement, ~~as amended~~at the Effective Time, including all information contained in the Final Registration Statement and the ~~prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus~~ Final Prospectus filed with the Commission pursuant to Rule 424(b) of the ~~rules~~ Rules and ~~regulations~~ Regulations and deemed to be a part of the ~~Commission (~~registration statement as of the ~~“Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared~~ Effective Time pursuant to ~~Section 7(a~~paragraph (b) of ~~this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering~~ Rule 430A of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (BE Resources Inc.)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement~~The Company represents and warrants to, and agrees with, the ~~Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows~~Investor that: ~~(a) (i) A registration statement~~ 5.1 The Company has filed with the Commission a Registration Statement on Form S-3 (~~Nos~~Registration File No. 333-130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 333- 115052) under the Securities Act, which was declared effective by the S.E.C. on November 9, 2004, for the registration under the Securities Act ~~has been filed with~~ of the ~~Commission~~ Shares (~~which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ any shares issuable upon exercise of the Warrants). At the time of such filing, the Company met the requirements of Form S-3 under the Securities Act. Such registration statement meets the requirements set forth in Rule ~~430 of~~ 415(a)(1)(x) under the ~~Act)~~ Securities Act and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed complies with said Rule. The Company will file with the Commission pursuant to Rule 424(b) of under the Securities Act, and the rules and regulations (the "Rules and Regulations") of the Commission ~~(the “Rules and Regulations”) under the Act)~~promulgated thereunder, ~~are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that~~ a supplement to the ~~Prospectus prepared~~ form of prospectus included in such registration statement relating to the placement of the Units and the plan of distribution thereof and has advised the Investors of all further information (financial and other) with respect to the Company required to be set forth therein. The Company will also use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the date when all shares of common stock issuable pursuant to ~~Section 7(a~~the exercise of the Warrants have been sold pursuant to the Registration Statement or an exemption from the registration requirements of the Securities Act, or may be sold without volume restrictions pursuant to Rule 144(k) ~~of this~~ as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company's transfer agent and the Investor. Any reference in the Agreement to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to ~~have supplemented~~ refer to and include the documents incorporated by reference therein (the "Incorporated Documents") pursuant to Item 12 of Form S-3 which were filed under the Exchange Act, on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus ~~only with respect~~ Supplement, as the case may be; and any reference in this Agreement to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied terms "amend," "amendment" or "supplement" with respect to the Registration Statement~~; (ii) As~~ , the Base Prospectus or the Prospectus Supplement shall be deemed to refer to an include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the ~~Closing Date~~Base Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information which is "contained," "included," "described," "referenced," "set forth" or "stated" in the Registration Statement, the ~~Preliminary~~ Base Prospectus or the Prospectus Supplement (and ~~the Prospectus, except with respect to any modification to which the Representatives have agreed in writing,~~ all other references of like import) shall be in deemed to mean and include all ~~substantive respects in the form furnished to the Representatives before~~ such ~~date or, to the extent not completed on such date, shall contain only such specific additional information~~ financial statements and schedules and other ~~changes (beyond that contained~~ information which is or is deemed to be incorporated by reference in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the ~~Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact~~ Base Prospectus or ~~omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and~~ the Prospectus ~~will conform in all material respects with~~ Supplement, as the ~~applicable requirements of~~ case may be. No stop order suspending the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation effectiveness of the Registration Statement or the ~~Prospectus; (iv) The Preliminary~~ use of the Base Prospectus at or the ~~Time of Sale did not~~Prospectus Supplement has been issued, and ~~at the Closing Date will not~~no proceeding for any such purpose is pending or has been initiated or, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the ~~omission of pricing and price-dependent information~~Company's knowledge, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated threatened by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms AgreementCommission. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Subscription Agreement (Research Frontiers Inc)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company hereby represents, warrants and covenants to ~~each Underwriter~~ the Placement Agent as of the date ~~hereof~~ hereof, and as of the Closing ~~Date (unless otherwise specified)~~ Date, as follows: (a) Securities Law Filings. The Company has filed with the U.S. Securities and Exchange Commission (ithe “Commission”) A a “shelf” registration ~~statement~~ statement, and an amendment or amendments thereto, on Form S-3 (~~Nos~~File No. 333-~~130862, 000-000000-00 and 333-130862-02~~199219), ~~including a prospectus and such amendments thereto as may have been required to~~ which registration statement was declared effective on November 20, 2014, for the ~~date hereof, relating to the offering~~ registration of notes as described therein from time to time in accordance with Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of certain securities of the ~~Notes offered thereby constituting a part thereof~~Company, ~~as from time to time amended or supplemented (~~including ~~any prospectus filed with~~ Common Stock, under the ~~Commission pursuant to Rule 424(b) of~~ Securities Act and the rules and regulations of the Commission promulgated thereunder (the “~~Rules and~~ Securities Act Regulations”~~) under~~ ). Such registration statement, including the ~~Act)~~exhibits thereto, ~~are respectively referred to herein~~ as amended at the date of this Agreement, is hereinafter called the “Registration Statement” ”. After execution and delivery of this Agreement, the Company will prepare and file with the Commission a prospectus supplement to the base prospectus included in the Registration Statement (the “Base Prospectus”) in accordance with the provisions of Rule 430B (“Rule 430B”) and Rule 424(b) (“Rule 424(b)”) of the Securities Act Regulations; any information included in such prospectus supplement that was omitted from the Registration Statement at the time it became effective but that is deemed to be part of and included in the Registration Statement pursuant to Rule 430B is herein called the “Rule 430B Information”; the Base Prospectus, together with any prospectus supplement used in connection with the offering of the Shares is hereinafter collectively called the “Prospectus~~”; provided that a supplement~~ .” Any reference in this Agreement to the Registration Statement, the Base Prospectus ~~prepared pursuant to Section 7(a) of this Agreement~~ or the Prospectus shall be deemed to ~~have supplemented~~ refer to and include the ~~Prospectus only with respect~~ documents incorporated or deemed incorporated by reference therein (the “Incorporated Documents”) pursuant to ~~the offering~~ Item 12 of ~~the Notes to which it relates; and the conditions to the use of a registration statement on~~ Form S-3 which were filed under the ~~Act~~Securities Exchange Act of 1934, as ~~set forth in~~ amended (the ~~General Instructions to Form S-3~~“Exchange Act”), and the ~~conditions~~ rules and regulations of ~~Rule 415 under~~ the ~~Act~~Commission promulgated thereunder, ~~have been satisfied~~ on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus, as the case may be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement~~; (ii) As~~ , the Base Prospectus, or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the ~~Closing Date~~Base Prospectus or the Prospectus, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules and any other information which is “contained, “included,” “described,” “referenced,” “set forth” or “stated” in the Registration Statement, the ~~Preliminary Prospectus and the~~ Base Prospectus, ~~except with respect to any modification to which~~ or the ~~Representatives have agreed in writing,~~ Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and any other information which is or is deemed to be incorporated by reference in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Base Prospectus, as the case may be. The Company and the transactions contemplated by this Agreement meet the requirements for, and comply with the conditions for the use of, Form S-3 under the Securities Act, including but not limited to Instruction I.B.6 of Form S-3. The Company is not a shell company (as defined in Rule 405 of the Securities Act Regulations) and has not been a shell company for at least 12 calendar months previously and if it has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction I.B.6 of Form S-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell company. (b) Assurances. The Registration Statement, as amended, (and any further documents to be filed with the Commission) contains all exhibits and schedules as required by the Securities Act. Each of the Registration Statement ~~conformed~~ and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the ~~applicable requirements of the~~ Securities Act and the applicable Rules and ~~Regulations,~~ Regulations and did not ~~include~~ contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a ~~material fact or omit to state any~~ material fact required to be stated therein or necessary to make the statements therein not misleading~~; provided~~. The Base Prospectus and the Prospectus, ~~however~~each as of its respective date, ~~that~~ comply or will comply in all material respects with the ~~foregoing does not apply to information contained in or omitted from either~~ Securities Act and the applicable Rules and Regulations. Each of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement Base Prospectus or the Prospectus~~; (iv) The Preliminary Prospectus at~~ , as amended or supplemented, did not and will not contain as of the ~~Time of Sale did not, and at the Closing Date will not, include~~ date thereof any untrue statement of a material fact or omit to state ~~any~~ a material fact ~~required to be stated therein or~~ necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall misleading. The two preceding sentences do not apply to ~~any~~ statements or omissions ~~made in reliance~~ from any such document based upon ~~and in conformity with~~ written information ~~relating to any Underwriter~~ furnished to the Company ~~in writing~~ by ~~such Underwriter through~~ the ~~Representatives expressly~~ Placement Agent specifically for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginiatherein. The ~~Company has~~Incorporated Documents, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company when they were filed with the ~~provisions hereof or thereof~~Commission, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform conformed in all material respects to the ~~descriptions thereof contained in~~ requirements of the ~~Preliminary Prospectus~~ Exchange Act and ~~will be validly issued~~ the applicable rules and ~~entitled to the benefits~~ regulations promulgated thereunder, and ~~security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance~~ none of such documents, when they were filed with the ~~Pooling and Servicing Agreement as~~ Commission, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence statements therein (with respect to Incorporated Documents incorporated by reference in the ~~Company~~ Prospectus), in light of the circumstances under which they were made not misleading. No post-effective amendment to the Registration Statement reflecting any facts or events arising after the date thereof which represent, individually or in the ~~event of any moratorium or similar occurrence affecting~~ aggregate, a fundamental change in the ~~Company and~~ information set forth therein is required to ~~general principles of equity~~be filed with the Commission. ~~All approvals~~Except for this Agreement, ~~authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except~~ there are no documents required to be filed with ~~respect to~~ the ~~securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required~~ Commission in connection with the ~~valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate~~ transaction contemplated hereby that (x) have not been filed as required pursuant to the ~~Pooling and Servicing~~ Securities Act or (y) will not be filed within the requisite time period. Except for this Agreement, ~~have been~~ there are no contracts or ~~will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be,~~ other documents required to be ~~registered under the 0000 Xxx. (g) Based on information currently available to, and~~ described in the ~~reasonable belief of, the Company, the Company is not engaged (whether as defendant~~ Base Prospectus or ~~otherwise) in, nor has the Company knowledge of the existence of~~Prospectus, or ~~any threat of, any legal, arbitration, administrative~~ to be filed as exhibits or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation schedules to the ~~Collateral Certificate~~ Registration Statement, which have not been described or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Eventfiled as required. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Placement Agency Agreement (Onconova Therapeutics, Inc.)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about February 3, 2014 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. The Master Trust does not rely on the exemption from the definition of “investment company” in Section 3(c)(1) or 3(c)(7) of the 1940 Act. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (n) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about [ ] [ ], 20[ ] (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 1 contract

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

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement~~The Company hereby represents and warrants to, ~~the Company represents, warrants~~ and covenants ~~to each Underwriter~~ with, Hochschild as of follows and acknowledges that Hochschild is relying on such representations and warranties in connection with the ~~date hereof and as of the Closing Date (unless otherwise specified) as follows~~transaction contemplated hereby: (a) ~~(i) A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00~~ the Company and ~~333-130862-02), including a prospectus and such amendments thereto as may~~ its subsidiaries have been ~~required to the date hereof, relating to the offering of notes as described therein from time to time~~ duly incorporated and are in ~~accordance with Rule 415~~ good standing under the ~~Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements~~ laws of ~~Rule 430 of the Act) and such registration statement, as amended, has become effective; such registration statement, as amended~~their respective jurisdictions, and ~~the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed~~ are current and up-to-date with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact filings required to be ~~stated therein~~ made by them in such jurisdiction, have all requisite corporate power and authority and are duly qualified and except as disclosed in Schedule 5.1(a), possess all certificates, authorizations, permits and licences issued by the appropriate state, municipal, or federal regulatory agencies or bodies necessary (and has not received or is aware of any modification or revocation to ~~make~~ such licences, authorizations, certificates or permits) to carry on their business as now conducted and to own the ~~statements therein not misleading and, on the Closing Date, the Registration Statement~~ Existing Properties and their other assets and the ~~Prospectus will conform in~~ Company and its subsidiaries have all ~~material respects with the applicable requirements of the Act~~ requisite corporate power and ~~the Rules~~ authority to execute, deliver, perform and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances carry out their obligations under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the NotesAgreement. (b) ~~The Company~~ except as disclosed in Schedule 5.1(b), since March 31, 2009, there has been ~~duly organized and is validly existing as a Virginia limited liability company under~~ no change to the ~~laws~~ Company (actual, or to the knowledge of the ~~Commonwealth of Virginia. The Company has~~Company, proposed or prospective, whether financial or otherwise) that would cause a Material Adverse Effect to the Company, which has not been disclosed to the public and, in all material respects, ~~full power and authority to own its properties and conduct its~~ the business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company has been carried on in the usual and ~~its subsidiaries (if any)~~ordinary course consistent with past practice, ~~taken as a whole, or (ii) would have a material adverse effect on~~ to the extent that such past practice is consistent with the current business direction of the Company~~’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement~~. (c) ~~The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements,~~ this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute constitutes a legal, valid and binding obligation of the Company, enforceable ~~against the Company~~ in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date.; (fd) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of its obligations under this Agreement and the issuance, sale and delivery of the Purchased Shares by the Company: (i) has been duly authorized by all necessary action on the part of the Company; (ii) does not require the approval, authorization, consent or order of, and no filing, registration or recording with, any governmental authority having jurisdiction over the Company in connection with the execution and delivery or with the performance by the Company of this Agreement; (iii) does not require the consent, approval, authorization, registration or qualification of or with any governmental authority, stock exchange, securities commission or other regulatory authority or other third party; and (iv) does not and will not (or will not with the giving of notice, the lapse of time or the happening of any other event or condition) result in a violation of any of the terms or provisions of any law applicable to the Company, a breach or a violation of, or conflict with or result in a default under, or allow any other person to exercise any rights under, any of the terms or provisions of the articles, by-laws or resolutions of the Board of Directors (or any committee thereof) or security holders of the Company, or any judgment, decree, order or award of any court, governmental body or arbitrator having jurisdiction over any of them, or any agreement, license or permit to which any of them is a party; (e) as of the close of business on June 29, 2009, the authorized capital of the Company consists of 60,000,000 shares of common stock and 5,000,000 shares of preferred stock, of which 41,095,489 shares of common stock are issued and outstanding as fully paid and non-assessable, and the Company has no other shares of any kind issued and outstanding; (f) as at the date of this Agreement there are outstanding Options to acquire an aggregate of up to 3,770,000 shares of Company common stock, of which 1,000,000 were issued subsequent to the execution of the Strategic Alliance Agreement and are described in more detail on Schedule 5.1(f) hereto. Except for the Options, no person, except Hochschild, holds any Convertible Securities of the Company or any of its Subsidiaries or is entitled to any pre-emptive or any similar rights to subscribe for any Shares or other securities of the Company or any of its Subsidiaries; (g) as at the date of this Agreement, Hochschild owns 6,000,000 Shares of common stock (“Hochschild Shares”) representing 14.60% of the ~~applicable Terms~~ issued and outstanding Shares on a non-diluted basis and immediately following the Tranche One Closing, Hochschild will own the Purchased Shares and the Purchased Shares and Hochschild Shares will collectively represent 17.12% of the then-issued and outstanding Shares on a non-diluted basis, assuming no other issuance of shares between the date of this Agreement and the Tranche One Closing Date; (h) as at the date of this Agreement, there is no Contract or any other right of another Person binding upon or which at any time in the ~~Receivables Purchase Agreements~~ future may become binding upon the Company or any of its Subsidiaries: (i) to allot or issue any unissued shares thereof to any Person; (ii) to create any additional class of shares of the Company or any of its Subsidiaries; (iii) to sell, transfer, assign, pledge, mortgage or in any way dispose of or encumber any securities of the Company or any of its Subsidiaries to or in favour of any Person; or (iv) to sell, transfer, assign, pledge, mortgage or in any other way dispose of or encumber any of the assets of the Company or any of its Subsidiaries other than in the ordinary course of business; (i) to the knowledge of the Company, no agreement is in force or effect which in any manner affects the voting or control of any of the securities of the Company or any of its Subsidiaries and, to the knowledge of the Company, following each Closing Date and except for the Strategic Alliance Agreement, there will be no shareholders’ agreement, voting trust agreement or other agreement (i) governing or otherwise affecting the voting rights associated with any securities of the Company; or (ii) restricting or otherwise affecting the power and authority of the directors of the Company; (j) the Company is in compliance with its obligations under all applicable securities laws and has filed and made timely and accurate disclosure in reports and all other documents required to be filed under securities laws applicable thereto; (k) neither the Company, nor any person acting on its behalf has, directly or indirectly, (i) made offers or sales of any security, or solicited offers to buy any security, under circumstances that would require the distribution of the Purchased Shares to be qualified by a prospectus filed in accordance with the Securities Laws or (ii) has engaged in any advertisement of Company shares in any printed media of general and regular paid circulation, radio or television or any other form of advertising in connection with the offer and sale of Company shares that would require filing of a prospectus; (l) the Purchased Shares to be issued have been, or prior to each Closing Date (as defined in Section 2.5) will have been, duly created and, when issued and delivered to Hochschild, the Purchased Shares will be validly issued as fully paid Shares and will not have been issued in violation of or subject to any pre-emptive rights or contractual rights to purchase securities issued by the Company; (m) no securities commission, stock exchange or comparable authority has issued any order preventing or suspending the distribution of the Purchased Shares or the trading of securities of the Company generally and the ~~Pooling~~ Company is not aware of any investigation, order, inquiry or proceeding which has been commenced or which is pending, contemplated or threatened by any such authority; (n) the common stock currently trades in the Over-the-Counter market and ~~Servicing Agreement shall~~ is quoted on the Bulletin Board system maintained by FINRA and no order ceasing or suspending trading in any securities of the Company or the trading of any of the Company’s issued securities is currently outstanding and no proceedings for such purpose are, to the knowledge of the Company, pending or threatened; (o) except as otherwise publicly disclosed by the Company, the Company has carried out its affairs in compliance in all material respects with the terms and provisions of applicable Laws and is not in material violation of or in material default in the performance of any mortgage, note, indenture, deed of trust, contract, agreement (written or oral), instrument, lease, licence or other document to which it is a party or by which it is bound or to which its property or assets or any of them is subject, and no event has occurred which with notice or lapse of time or both would constitute such a default and all such contracts, agreements and arrangements are in good standing; (p) the Company and each of its subsidiaries has duly and in a timely manner filed all Tax Returns that are required to be filed by them and all such Tax Returns are correct or complete in all respects; and, to the knowledge of the Company and except as disclosed in Schedule 5.1(p), there are no audits of the Tax Returns of the Company or any of its Subsidiaries by any Authority pending and there are no outstanding claims or Liens for Taxes on the assets of the Company or any of its Subsidiaries; (q) except as disclosed in Schedule 5.1(q), there is no Contract to which the Company or its subsidiaries is a party or by which any of them or their respective properties or assets are bound that (a) if terminated, would reasonably be expected to have a material adverse effect on the Company; or (b) is a contract that contains any non-competition obligations or otherwise restricts in any material way the business of the Company or its subsidiaries; (r) the Company and each of its subsidiaries has performed in all material respects all respective obligations required to be performed by them to date under any material contracts and are not, and are not to the knowledge of the Company, alleged to be in breach or default in any material respect thereunder; (s) except as disclosed in Schedule 5.1(s), neither the Company nor its Subsidiaries are parties to, bound by or subject to any debt instrument, or any agreement, contract or commitment to create, assume or issue any debt instrument; (t) the Audited Financial Statements and the Unaudited Financial Statements have been ~~paid~~ prepared in accordance with generally accepted accounting principles (“GAAP”) applied on a basis consistent with those of preceding fiscal periods (except that the Unaudited Financial Statements do not contain all of the footnotes that would be required by GAAP and have been prepared in accordance with the rules of the United States Securities and Exchange Commission pertaining to condensed interim statements) and the statements present fairly the assets, liabilities and financial condition of the Company as at the dates and for the periods indicated in such financial statements; (u) neither the Company nor any of its subsidiaries has been in material violation of any Environmental Laws or Permits and there are no orders, rulings or directives issued, pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries under or pursuant to any Environmental Laws; (v) the Company and its subsidiaries hold either freehold title, mining leases, mining claims or other conventional property, proprietary or contractual interests or rights, recognized in the jurisdiction in which a particular property is located in respect of the ore bodies and minerals located in its Existing Properties under valid, subsisting and enforceable title documents or other recognized and enforceable agreements or instruments, which are currently sufficient to permit the Company through its subsidiaries to explore the minerals relating thereto, and all such property, leases or claims and all property, leases or claims in which the Company or the subsidiaries have any interest or right have been validly located and recorded in accordance with all applicable laws and are valid and subsisting; (w) the Company’s Subsidiaries have obtained surface rights, access rights and other rights to only portions of its holdings as follows: the El Xxxxxx Project has been granted surface rights for exploration (including the La Arista underground vein deposit) and surface rights for exploitation (the El Xxxxxx open pit) in the area of its mining sites and mill site (and have applied for surface disturbance at portal of underground mine for La Arista deposit); Las Margaritas has been granted surface rights for exploration on a portion of its claims; El Rey has been granted surface rights for exploration on a portion of its claims; and no surface rights have been obtained for exploration at the Solaga property; (x) the Company has not declared or paid, or committed to declare or pay, any amount to any person in respect of a performance or incentive or other bonus in connection with the completion of the transaction contemplated by this Agreement; (y) the Company’s Subsidiaries have timely filed applications with the relevant authorities to obtain all necessary permits required to commence mining operations (exploitation) at the El Xxxxxx project, including but not limited to: (i) the rights to use groundwater; and (ii) authorization for the purchase, storage and use of explosives; (z) neither the Company nor any of its subsidiaries is subject to any claim for wrongful dismissal, constructive dismissal or any other claim or any litigation relating to its employees or independent contractors (including any termination of such persons) nor to the Company’s knowledge are any such claims or litigation threatened, other than those claims or such litigation as would individually or in the aggregate not have a material adverse effect on the Company; (aa) the Company and each Subsidiary has timely filed with all applicable securities regulatory authorities, and all applicable self-regulatory organizations true and complete copies of all forms, reports, schedules, statements and other document required to be filed by it, and all such documents complied in all material respects with the requirements of applicable securities laws; (bb) there are no actions, suits, proceedings or inquiries pending or, to the knowledge of the Company, threatened against or affecting the Company or its subsidiaries or their property or assets at law or in equity or before or by any federal, municipal or other governmental department, court, commission, board, bureau, agency or instrumentality; (cc) there is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects with any applicable provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications. (dd) the Company acknowledges that the representations, warranties, acknowledgements and agreements contained herein are made by the Company with the intent that they may be relied upon by Hochschild in deciding to subscribe for the Purchased Shares. The Company further agrees that it shall represent and warrant that except as set forth in such representation or warranty, the foregoing representations and warranties will be ~~paid~~ true and correct as at each Closing Date with the same force and effect as if they had been made by the Company at ~~or before~~ the Closing Date and that they shall survive the purchase by Hochschild of the Purchased Shares. The Company undertakes to notify Hochschild immediately of any change in any representation, warranty or other information relating to the ~~extent then due. (l) As of the~~ Company set forth herein which takes place prior to each Closing Date. For greater certainty, the Company acknowledges that Hochschild is relying upon the representations and warranties of the Company in ~~the Pooling and Servicing~~ entering into this Agreement and confirms that no investigation made by Hochschild or its representatives will affect Hochschild’s right to rely on any such representation and warranty made by the ~~Receivables Purchase Agreements will be true and correct~~ Company in ~~all material respects~~this Agreement. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Subscription Agreement (Gold Resource Corp)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus ~~supplements~~ supplements) meeting the requirements of Rule 430 of the Act) and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration ~~Statement, the Preliminary Prospectus~~ Statement and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement~~ The Registration Statement on Form S-3 (Nos. 333-~~130862~~142033, 000-000000-00 and 333-~~130862~~142033-02), including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement~~The Company hereby represents and warrants to, ~~the Company represents, warrants~~ and covenants to with, each Underwriter ~~as of the date hereof and as of the Closing Date (unless otherwise specified)~~ as follows: (a) ~~(i) A~~ The Registration Statement is an “automatic shelf registration ~~statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto~~ statement” as ~~may have been required to~~ defined under Rule 405 of the ~~date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the~~ Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Company. The Company has complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration Statement is in effect, the Commission has not issued any order or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus and no proceedings for such purpose have been instituted or are pending or, to the best knowledge of the Company, are threatened by the Commission. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or any offering participant made a bona fide offer (~~which may have included one or more preliminary prospectuses and prospectus supplements meeting~~ within the ~~requirements~~ meaning of Rule ~~430~~ 164(h)(2) under the Securities Act) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” and is a well-known seasoned issuer, in each case as defined in Rule 405 under the Securities Act. The Company will pay the registration fee for this offering pursuant to Rule 456(b)(1) under the Securities Act within the time period required by such rule (without giving effect to the proviso therein) and ~~such registration statement~~in any event prior to the Closing Date. (b) Each Preliminary Prospectus and the Prospectus when filed complied in all material respects with the Securities Act and the rules thereunder. Each of the Registration Statement and any post-effective amendment thereto, ~~as amended~~at the time it became effective and at the date hereof, ~~has become effective; such registration statement~~complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission thereunder (collectively, the “~~Rules and Regulations~~Trust Indenture Act”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not ~~include~~ and will not contain any untrue statement of a material fact or omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading and~~misleading. The Prospectus (including any Prospectus wrapper), on as amended or supplemented, as of its date, at the time of any filing pursuant to Rule 424(b) and at the Closing Date, ~~the Registration Statement and the Prospectus~~ will ~~conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include~~ not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact ~~or omit to state any material fact required to be stated therein or~~ necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (it being understood that no representation or warranty is made with respect to the omission of pricing~~ misleading. The representations and ~~price-dependent information, which information shall of necessity appear only~~ warranties set forth in the ~~final Prospectus); provided, however, that this representation and warranty shall~~ two immediately preceding sentences do not apply to ~~any~~ statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by ~~such Underwriter through~~ the ~~Representatives~~ Representative expressly for use in therein, it being understood and agreed that the ~~Preliminary Prospectus; and (v) Other than~~ only such information furnished by the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws Representative consists of the ~~Commonwealth of Virginia~~information described as such in Section 8(b) hereof. ~~The Company has, in all material respects, full power and authority~~ There is no contract or other document required to ~~own its properties and conduct its business as~~ be described in the ~~Preliminary Prospectus, and~~ Prospectus or to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect be filed as an exhibit to the ~~securities laws of any foreign jurisdiction~~ Registration Statement that has not been described or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken filed as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreementrequired. (c) The ~~execution~~documents incorporated by reference in the Prospectus, ~~delivery and performance by~~ when they were filed with the ~~Company~~ Commission, complied in all material respects with the requirements of the ~~Pooling and Servicing Agreement~~Securities Act or the Exchange Act, ~~the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement~~as applicable, and none of such documents, when they were so filed, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the ~~delivery~~ statements therein, in the light of the ~~Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby~~circumstances under which they were made, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrumentnot misleading. (d) The ~~Company has duly executed and delivered this Agreement and~~ term “Disclosure Package” shall mean (i) the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the CompanyPreliminary Prospectus, as ~~Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement~~amended or supplemented, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, Applicable Time (as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictionsdefined below), ~~required in connection with~~ (ii) the ~~valid~~ Final Term Sheet (as defined herein) and ~~proper authorization, issuance and sale of the Notes~~ each “free-writing prospectus” (as defined pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Securities Act) listed on Schedule B. As of 4:20 P.M. (Eastern time) on the date of execution and delivery of this Agreement (the “Applicable Time”), the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 8(b) hereof.

Appears in 1 contract

Samples: Underwriting Agreement (Mgic Investment Corp)

Representations, Warranties and Covenants of the Company. ~~Upon the execution~~ The Company hereby represents and warrants to, and covenants with, each of the ~~applicable Terms Agreement,~~ Purchasers as follows: (A) Each of the representations and warranties of the Company ~~represents~~contained in Sections 2.4, ~~warrants~~ 2.6, 2.7, 2.8, 2.9, 2.13 and ~~covenants~~ 2.14 (the "Prior Agreement Sections") of the Prior Agreement is true and correct, with the same force and effect as if each of such representations and warranties (together, subject to ~~each Underwriter~~ Section 2(b) hereof, with the definitions of all terms used therein which are defined in the Prior Agreement) were set forth at length herein and made directly to the Purchasers on and as of the date hereof and as if each Exhibit and Appendix referred to therein and attached to the Prior Agreement were attached to and made a part of ~~the Closing Date (unless otherwise specified) as follows: (a)~~ this Agreement, except that for purposes of this Agreement (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required~~ all references to Schedules in the date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Prior Agreement Sections shall be deemed to ~~have supplemented the Prospectus only~~ be references to Schedules to this Agreement and such Schedules shall be prepared with respect to and attached to this Agreement (labeled with the ~~offering~~ respective Prior Agreement Section number) and (ii) the reference in Section 2.13 to "Section 6" shall be deemed to refer to Section 5 hereof. With respect to any covenants or agreements of the ~~Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as~~ Company set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the ProspectusPrior Agreement Sections, the Company covenants and agrees to perform its obligations related thereto in accordance with the terms of the Prior Agreement Sections, as if such covenants and agreements were set forth at length herein, and made directly to the Purchasers on and as of the date hereof. (~~including its agents~~ B) In the event that any term contained in any of the Prior Agreement Sections is defined in the Prior Agreement (the "Incorporated Definitions") and ~~representatives~~ is also defined in this Agreement, then for purposes of this Section 2 (but not for purposes of any other ~~than~~ provision of this Agreement, except as otherwise specifically provided herein) such term will have the ~~Underwriters~~ meaning assigned to it in ~~their capacity as such~~the Prior Agreement, except that for purposes of this Agreement all references in the Prior Agreement Sections and the Incorporated Definitions to (i) ~~has not made, used, prepared, authorized, approved or referred~~ the "Shares" will be deemed to ~~and will not prepare, make, use, authorize, approve or refer~~ be references to ~~any “written communication”~~ the Shares (as defined in ~~Rule 405 under~~ this Agreement), (ii) the ~~Act~~"Transaction Agreements" will be deemed to be references to the Transaction Agreements (as defined in this Agreement), (iii) ~~that constitutes an offer~~ the "Closing" will be deemed to ~~sell or solicitation of an offer~~ be references to ~~buy~~ the ~~Notes~~Closing (as defined in this Agreement), and (iv) the "Restated Certificate" and the "Bylaws" will be deemed to be references to the Restated Certificate and the Bylaws (each as defined in this Agreement). (bC) In addition to the foregoing, the Company makes the following representations and warranties to the Purchasers: (I) The Company ~~has been~~ is a corporation duly ~~organized and is~~ organized, validly existing ~~as a Virginia limited liability company~~ and in good standing under the laws of the ~~Commonwealth~~ State of ~~Virginia. The Company has, in~~ Delaware and has all ~~material respects, full~~ requisite corporate power and authority to ~~own its properties and conduct~~ carry on its business as ~~described~~ currently conducted and as currently proposed to be conducted. The Company is qualified and in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified good standing to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which the failure to so qualify ~~or obtain such licenses and approvals (i)~~ would have a material adverse effect on its business, properties, prospects or financial condition. The Company has delivered to each of the Purchasers true and accurate copies of the Company's Amended and Restated Certificate of Incorporation and Bylaws, each as amended through, and in effect on, the date hereof (the "Restated Certificate" and the "Bylaws"). (II) The authorized capital stock of the Company ~~and its subsidiaries~~ consists of (~~if any~~x) 150,000,000 shares of common stock, par value $.01 per share (the "Common Stock"), ~~taken~~ of which 75,000,000 shares have been designated as Series A Common Stock (the "Series A Common Stock") and 75,000,000 shares have been designated as Series B Common Stock (the "Series B Common Stock"), and (y) 75,000,000 shares of preferred stock, par value $.01 per share (the "Preferred Stock"), of which (1) 25,000,000 shares have been designated as Series T Preferred Stock, (2) 7,000,000 shares have been designated as Series K Preferred Stock, and (3) 43,000,000 shares are undesignated as to series and shall be issuable pursuant to authority granted in the Restated Certificate to the Board of Directors (the "Series Preferred Stock"). As of the date hereof, (x) no shares of Series A Common Stock or Series B Common Stock have been issued or are outstanding, (y) other than the Initial TCI Shares and the Initial KPCB Shares, no shares of Series T Preferred Stock or Series K Preferred Stock have been issued or are outstanding, and (z) no shares of Series Preferred Stock have been designated as a ~~whole~~series or class of Preferred Stock (nor has any action been taken to so designate any shares of Series Preferred Stock), and no shares of Series Preferred Stock have been issued or are outstanding. All such issued and outstanding shares have been duly authorized and validly issued and are fully paid and nonassessable and have been issued in compliance with all applicable state and federal laws concerning the issuance of securities. The Company has reserved, and agrees that it will at all times keep reserved, such number of shares of Series B Common Stock as is sufficient to provide for the conversion of all shares of the Series T and Series K Preferred Stock (iiincluding the Shares to be issued pursuant to this Agreement) ~~would have a material adverse effect~~ outstanding from time to time, and has reserved, and agrees that it will at all times keep reserved, such number of shares of Series A Common Stock as is sufficient to provide for the conversion of all shares of Series B Common Stock then issued and outstanding or issuable upon the conversion, exercise or exchange of any security (including the shares of Series B Common Stock to be issued upon conversion of the Shares) outstanding from time to time. In addition to the foregoing, the Company has reserved for issuance such number of shares of Series A Common Stock as are issuable upon exercise of the stock options granted or to be granted as listed on Schedule 2(c) hereto. Except for the ~~Company’s ability to consummate~~ transactions contemplated by this Agreement or the Prior Agreement (including the transactions contemplated by the ~~Pooling and Servicing Agreement, the Receivables Purchase Agreements, this~~ Stockholders' Agreement and the ~~applicable Terms~~ Registration Rights Agreement (each as defined in the Prior Agreement. )), or as set forth on Schedule 2(c) hereto, (cx) ~~The execution~~there are: (i) no outstanding warrants, ~~delivery and performance~~ options, rights (including conversion or preemptive rights), or agreements to subscribe for or purchase any capital stock or other securities from the Company; (ii) to the knowledge of the Company, no voting trusts or voting agreements among, or irrevocable proxies executed by, stockholders of the Company; (iii) no existing rights of stockholders to require the Company to register any securities of the Company or to participate with the Company in any registration by the Company of its securities; and (iv) to the ~~Pooling~~ knowledge of the Company, no agreements among stockholders providing for the purchase or sale of the Company's capital stock, and ~~Servicing~~ (y) the Company has not taken any action that would result in a stock split, stock dividend, reverse split, recapitalization or reclassification affecting its capital stock or the designation of the Series Preferred Stock as a series or class of Preferred Stock of the Company. (III) The Company has full power and authority to execute, deliver and perform its obligations under this Agreement, the ~~Receivables Purchase Agreements, this Agreement~~ Registration Rights Amendment (as defined below) and the ~~applicable Terms Agreement~~Stockholders' Agreement Amendment (as defined below) (collectively, ~~and~~ the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company "Transaction Agreements"). All corporate action on the part of the Company~~. Neither~~ , its directors and its stockholders necessary for the ~~execution~~ authorization, execution, delivery and ~~delivery by the Company~~ performance of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the ~~applicable Terms Agreement. (e) The Collateral Certificate~~ other Transaction Agreements by the Company, the authorization, sale, issuance and delivery of the Shares, and the performance of all of the Company's obligations hereunder and thereunder has been ~~duly authorized and~~ taken. Each of the Transaction Agreements, when ~~validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee~~ executed and delivered by the Company, ~~as Beneficiary to~~ and assuming the ~~Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions~~ due execution and delivery thereof ~~contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded~~ by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the other parties hereto or thereto, ~~each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will~~ shall constitute a ~~legal,~~ valid and legally binding obligation of the Company, enforceable against ~~the Company~~ it in accordance with its terms, ~~except to~~ subject to: (x) judicial principles limiting the ~~extent that the enforceability thereof may be subject to~~ availability of specific performance, injunctive relief and other equitable remedies and (y) bankruptcy, insolvency, reorganization~~, receivership, conservatorship~~, moratorium or other similar laws now or hereafter in effect generally relating to or affecting creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date' rights. (fIV) ~~The Master Trust is not now~~Since August 29, 1995, neither the Restated Certificate, the Bylaws, the Registration Rights Agreement, nor the Stockholders' Agreement has been amended in any way, and ~~following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and~~ except as specified in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, ~~the applicable Terms Agreement, the Receivables Purchase Agreements~~ no action has been taken and ~~the Pooling and Servicing Agreement shall have been paid or will~~ no action is contemplated to be ~~paid by the Company at or before the Closing Date~~ taken in respect of any amendment to the ~~extent then due~~foregoing documents. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Stock Purchase Agreement (At Home Corp)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company represents, warrants and ~~covenants to each Underwriter as of~~ agrees with the ~~date hereof and as of the Closing Date (unless otherwise specified) as follows~~respective Underwriters that: (a~~) (i~~) A registration statement on Form S-3 (~~Nos~~No. 333-~~130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required~~ 111598) with respect to the ~~date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act~~ Certificates has been prepared by the Company and filed with the Securities and Exchange Commission (~~which may have included one or more preliminary prospectuses~~ the "Commission"), and ~~prospectus supplements meeting~~ complies as to form in all material respects with the requirements of ~~Rule 430~~ the Securities Act of ~~the Act) and such registration statement~~1933, as ~~amended, has become effective; such registration statement, as amended~~amended (the "1933 Act"), and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission ~~(the “Rules~~ thereunder, including Rule 415, and ~~Regulations”)~~ has become effective under the 1933 Act. As used in this Underwriting Agreement (this "Agreement" or the "Underwriting Agreement"), ~~are respectively referred to herein as the “~~(i) "Registration Statement” " means that registration statement and ~~the “Prospectus”; provided that a supplement~~ all exhibits thereto, as amended or supplemented to the ~~Prospectus prepared pursuant to Section 7(a)~~ date of this ~~Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates~~Agreement; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As "Basic Prospectus" means the prospectus included in the Registration Statement at the time it became effective, or as subsequently filed with the Commission pursuant to paragraph (b) of Rule 424 of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; 1933 Act; (iii) On "Prospectus Supplement" means the ~~effective date~~ prospectus supplement specifically relating to the Certificates, as most recently filed with, or transmitted for filing to, the Commission pursuant to paragraph (b) of Rule 424 of the ~~Registration Statement~~1933 Act; (iv) "Prospectus" means the Basic Prospectus, together with the Prospectus Supplement; (v) "Preliminary Prospectus Supplement" means any preliminary form of the Prospectus Supplement that has heretofore been filed pursuant to paragraph (b) of Rule 424 of the 1933 Act; and (vi) "Preliminary Prospectus" means the Basic Prospectus, together with any Preliminary Prospectus Supplement. The aggregate principal amount of the Certificates does not exceed the remaining amount of mortgage-backed securities that may be offered and sold under the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the ~~applicable settlement~~ date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Datehereof. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (LB-UBS Commercial Mortgage Trust 2004-C6)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement~~ The Registration Statement on Form S-3 (Nos. 333-~~130862~~142033, 000-000000-00 and 333-~~130862~~142033-02), including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “"written communication” " (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s 's ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s 's property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ ' rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s 's fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “"ineligible issuer” " as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about March 23, 2015 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (fi) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. (ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Company has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (n) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes.

Appears in 1 contract

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

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the ~~Representatives have~~ Representative has agreed in writing, shall be in all substantive respects in the form furnished to the ~~Representatives~~ Representative before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the ~~Representatives~~Representative) as the Company has advised the ~~Representatives~~Representative, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects with the applicable requirements of the Act and the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the ~~Representatives~~ Representative specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the ~~Representatives~~ Representative expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Master Trust)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about [ ][ ], 20[ ] (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (n) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Master Trust)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) ~~(i) A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00~~ The Company shall have performed and 333-130862-02), including a prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and such registration statement, as amended, has become effective; such registration statement, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed complied in all material respects with ~~the applicable requirements of the Act~~ its agreements and ~~the Rules and Regulations, and did not include any untrue statement of a material fact or omit to state any material fact required~~ covenants contained herein to be stated therein or necessary to make the statements therein not misleading and, on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained performed on or ~~before~~ prior to the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (hb) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance otherwise contemplated by ~~the Company of~~ this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company ~~in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will~~ contained herein shall be true and correct at and as of the earlier to occur of (i) the Closing or (ii) October 31, 1996, ignoring for this purpose all qualifications as to Material Adverse Effect or otherwise as to materiality in such representations and warranties. This condition will be deemed to be satisfied unless the failures of such representations and warranties (ignoring such qualifications) to be true and correct at and as of the earlier of said dates (with all ~~material respects~~such failures considered in the aggregate) would have or constitute a Material Adverse Effect. If, in making a determination pursuant to this Section 9.01(b) as to whether all representations and warranties of the Company set forth herein are true and correct at and as of the Closing Date, (i) there are no failures of any such representations or warranties other than the failure of a representation or warranty disclosed in a Section 8.08 Notice, and (ii) Purchaser did not exercise its right to terminate this Agreement pursuant to Section 11.01(c) hereof, then this condition will be deemed to be satisfied notwithstanding such failure; PROVIDED, HOWEVER, that if the Company delivers more than one Section 8.08 Notice, nothing herein shall preclude Purchaser from considering all Section 8.08 Notices in the aggregate in making a determination pursuant to this Section 9.01(b). (mc) ~~The Company was not, on the date on which the first bona fide offer~~ Purchaser shall have received a certificate of the ~~Notes sold~~ Company, dated as of the Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer of the Company, certifying as to the fulfillment of the conditions set forth in this Section 9.01 (the "Company's Certificate"). (d) Purchaser shall have received (i) evidence from the Company of the waiver by the beneficiaries under the MEP of any rights to receive aggregate payments under the MEP in excess of $5,043,941 and (ii) evidence from the Company that each Stockholder has agreed to his, her or its respective allocation of the Merger Consideration and has waived and releases the Company from any claims by such Stockholder to receive any additional amounts of Merger Consideration in excess of that provided for herein or any dividends other than those payable from the Merger Consideration as contemplated by Exhibit 3.01 hereto, or an opinion from counsel for the Company, in form and substance reasonably acceptable to Purchaser and its counsel, that no further payments of Merger Consideration are owed by the Company to the Stockholders pursuant to ~~the applicable Terms~~ this Agreement ~~was made, an “ineligible issuer” as defined in Rule 405 under the Act~~and that no such additional dividends are payable.

Appears in 1 contract

Samples: Merger Agreement (Carter William Co /Ga/)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act, including that certain issuer free writing prospectus filed by the Company or any of its co-registrants with the Commission on or about October 24, 2022 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) Except as described in the Disclosure Materials, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of any Program Agreement to which it is a party, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth in any Program Agreement to which it is a party, which if adversely determined would materially and adversely affect the Collateral Certificate or the Notes, or the validity or enforceability of such Program Agreement, or (C) seeking adversely to affect the United States Federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary—Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (e) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (ef) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. ~~When executed and delivered by the parties thereto, each~~ Each of the Pooling and Servicing Agreement, the Transfer Agreement and the Receivables Purchase ~~Agreements will constitute~~ Agreement constitutes a ~~legal,~~ valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of or filings with any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the consummation of the transactions set forth in the Program Agreements, the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (fi) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. (gii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Company has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act. (h) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (hi) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (ij) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (jk) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (kl) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (lm) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (mn) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (o) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes. (p) The Company has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act 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 Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement, the~~ The Company hereby represents, warrants and covenants to ~~each Underwriter~~ the Co-Placement Agents as of the date ~~hereof~~ hereof, and as of the Closing ~~Date (unless otherwise specified)~~ Date, as follows: (a) The Company has filed with the Securities and Exchange Commission (ithe “Commission”) A the Registration Statement under the Securities Act, which was filed on November 6, 2023 and declared effective on January 2, 2024 for the registration ~~statement on~~ of the Shares under the Securities Act. At the time of such filing, the Company met the requirements of Form S-3 under the Securities Act. The Company has also filed a preliminary and final multijurisdictional disclosure system prospectus (~~Nos~~collectively, the “Canadian Base Prospectus”) accompanying the Registration Statement (as defined below) with applicable Canadian Regulators in accordance with NI 71-101, and each of the Canadian Base Shelf Prospectus was receipted by such Canadian Regulators. ~~333-130862, 000-000000-00~~ Following the determination of pricing among the Company and ~~333-130862-02), including a prospectus and such amendments thereto as may have been required~~ the prospective Purchasers introduced to the ~~date hereof~~Company by the Co-Placement Agents, the Company will file with the Commission pursuant to Rules 430B and 424(b) under the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated thereunder, a final prospectus supplement relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 placement of the ~~Act~~Shares, their respective pricings and the plan of distribution thereof and will advise the Co-Placement Agents of all further information (financial and other) ~~and such~~ with respect to the Company required to be set forth therein. Such registration statement, ~~as amended~~at any given time, ~~has become effective;~~ including the exhibits thereto filed at such ~~registration statement~~time, as ~~amended~~amended at such time, ~~and~~ is hereinafter called the “Registration Statement”, such prospectus in the form in which it appears in the Registration Statement at the time of effectiveness is hereinafter called the “Base Prospectus”; the prospectus ~~relating to~~ supplement in the ~~sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus~~ form in which it will be filed with the Commission pursuant to Rule 424(b~~) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act~~), ~~are respectively referred to herein as the “Registration Statement”~~ and the ~~“Prospectus”; provided that a~~ multijurisdictional disclosure system prospectus supplement to the Canadian Base Prospectus ~~prepared pursuant to Section 7(a) of~~ complying with NI 71-101 that will be filed with the Canadian Regulators in the Canadian Jurisdictions, are hereinafter collectively called the “Prospectus Supplement” and together with the Base Prospectus and the Canadian Base Prospectus as each may be amended or supplemented is hereinafter called the “Final Prospectus.” The Registration Statement at the time it originally became effective is hereinafter called the “Original Registration Statement.” Any reference in this Agreement to the Registration Statement, the Original Registration Statement, the Base Prospectus, the Prospectus Supplement or the Final Prospectus shall be deemed to ~~have supplemented~~ refer to and include the ~~Prospectus only with respect~~ documents incorporated by reference therein (the “Incorporated Documents”), if any, which were or are filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), at any given time, as the case may be; and any reference in this Agreement to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied terms “amend,” “amendment” or “supplement” with respect to the Registration Statement~~; (ii) As~~ , the Original Registration Statement, the Base Prospectus, the Prospectus Supplement or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the ~~Closing Date~~Base Prospectus, the Prospectus Supplement or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,” “described,” “referenced,” “set forth” or “stated” in the Registration Statement, the ~~Preliminary Prospectus and the~~ Base Prospectus, ~~except with respect to any modification to which~~ the ~~Representatives have agreed in writing,~~ Prospectus Supplement or the Final Prospectus (and all other references of like import) shall be in deemed to mean and include all ~~substantive respects in the form furnished to the Representatives before~~ such ~~date or, to the extent not completed on such date, shall contain only such specific additional information~~ financial statements and schedules and other ~~changes (beyond that contained~~ information which is or is deemed to be incorporated by reference in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the ~~Registration Statement conformed~~ Base Prospectus, the Prospectus Supplement or the Final Prospectus, as the case may be. As used in ~~all material respects with~~ this paragraph and elsewhere in this Agreement, “Time of Sale Disclosure Package” means the ~~applicable requirements~~ Base Prospectus, any prospectus supplement, any subscription agreement between the Company and the Purchasers, and any issuer free writing prospectus as defined in Rule 433 of the Act ~~and the Rules and Regulations~~(each, ~~and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and~~an “Issuer Free Writing Prospectus”), on the Closing Date, the Registration Statement and the Prospectus will conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, howeverif any, that the ~~foregoing does not apply~~ parties hereto shall hereafter expressly agree in writing to ~~information contained in or omitted from either~~ treat as part of the ~~documents based upon written information furnished~~ Time of Sale Disclosure Package. The term “any Prospectus” shall mean, as the context requires, the Base Prospectus, the Final Prospectus, and any supplement to either thereof. The Company has not received any notice that the ~~Company~~ Commission has issued or intends to issue a stop order suspending the ~~Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation~~ effectiveness of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light use of the ~~circumstances under which they were made, not misleading (it being understood that no representation~~ Base Prospectus or ~~warranty is made with respect~~ any Prospectus Supplement or intends to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly commence a proceeding for use in the Preliminary Prospectus; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its agents and representatives other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such ~~indenture, mortgage, contract or other instrument~~purpose. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Placement Agency Agreement (McEwen Mining Inc.)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about February 14, 2019 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act, including that certain issuer free writing prospectus filed by the Company or any of its co-registrants with the Commission on or about September 12, 2024 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) Except as described in the Disclosure Materials, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of any Program Agreement to which it is a party, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth in any Program Agreement to which it is a party, which if adversely determined would materially and adversely affect the Collateral Certificate or the Notes, or the validity or enforceability of such Program Agreement, or (C) seeking adversely to affect the United States Federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary—Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (e) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (ef) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. ~~When executed and delivered by the parties thereto, each~~ Each of the Pooling and Servicing Agreement, the Transfer Agreement and the Receivables Purchase ~~Agreements will constitute~~ Agreement constitutes a ~~legal,~~ valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of or filings with any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the consummation of the transactions set forth in the Program Agreements, the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (fi) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. (gii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Company has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act. (h) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (hi) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (ij) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (jk) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (kl) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (lm) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (mn) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (o) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes. (p) The Company has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act 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 Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes~~. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has~~, ~~in all material respects~~other than any issuer free writing prospectus, full power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule ~~405~~ 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about August 18, 2015 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”).

Appears in 1 contract

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

Representations, Warranties and Covenants of the Company. ~~Upon~~ The Company represents and warrants to, and the ~~execution~~ Company also covenants and agrees with, each of the ~~applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified)~~ Underwriters as follows: (a) The Company has filed with the Securities and Exchange Commission (i"Commission") A a registration statement on Form ~~S-3~~ S-1 (~~Nos~~No. 333-~~130862, 000-000000-00 and 333-130862-02~~2588), including a ~~prospectus~~ preliminary prospectus, relating to the Shares and such amendments ~~thereto~~ to the registration statement and supplements to the prospectus included therein as may have been required to the date hereof~~, relating to the offering of notes as described therein from time to time in accordance with Rule 415 under the Act has been filed~~ . The Company will file with the Commission either: (~~which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements~~ i) prior to effectiveness of ~~Rule 430 of the Act) and~~ such registration statement, ~~as amended~~a further amendment thereto, ~~has become effective;~~ including a form of prospectus, and if required after effectiveness of such registration statement, ~~as amended, and the~~ a final prospectus ~~relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed~~ in accordance with ~~the Commission pursuant to~~ Rule 424(b) of the rules and regulations ~~of the Commission~~ (~~the “~~"Rules and Regulations”") under the ~~Act~~Securities Act of 1933, as amended ("Securities Acts"), or (ii) after effectiveness of such registration statement, a final prospectus in accordance with Rules 430A and 424(b) of the Rules and Regulations. Such registration statement (as amended, if applicable) and the prospectus constituting a part thereof (including, in each case, financial statements, exhibits and all documents incorporated or deemed to be incorporated by reference therein and the information, if any, deemed to be part thereof pursuant to Rule 430A(b) of the Rules and Regulations) are ~~respectively~~ hereinafter referred to ~~herein~~ as the “"Registration Statement” " and the “"Prospectus~~”; provided~~ ", respectively, except that ~~a supplement~~ if the prospectus filed by the Company pursuant to Rule 424(b) differs from the prospectus on file at the time the Registration Statement becomes effective, the term "Prospectus" shall refer to the ~~Prospectus prepared pursuant~~ Rule 424(b) prospectus and the term "preliminary prospectus" shall refer to ~~Section 7(a~~any predecessor prospectus. (b) ~~of this Agreement shall be deemed to have supplemented~~ To the ~~Prospectus only with respect to the offering~~ best of the ~~Notes to which it relates; and~~ Company's knowledge, the ~~conditions to~~ Commission has not issued an order preventing or suspending the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any ~~modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before~~ preliminary prospectus. Each such ~~date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that~~ preliminary prospectus has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the Registration Statement conformed in all material respects ~~with~~ to the ~~applicable~~ requirements of the Securities Act and the Rules and Regulations and has not included any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. At the date of this Agreement, when the Registration Statement becomes effective and at the Closing Date (as defined below) (i) the Registration Statement and Prospectus, and any amendments or supplements thereto, will contain all statements that are required to be stated therein by the Securities Act and the Rules and Regulations and will in all material respects conform to the requirements of the Securities Act and the Rules and Regulations, ~~and did~~ (ii) the Registration Statement will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading and~~misleading, ~~on the Closing Date, the Registration Statement~~ and (iii) the Prospectus will ~~conform in all material respects with the applicable requirements of the Act and the Rules and Regulations, and neither of such documents will~~ not include any untrue statement of a material fact or and will not omit to state any material fact required to be stated therein or necessary ~~to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained~~ in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information~~misleading, ~~which information shall of necessity appear only in the final Prospectus);~~ provided, however, that ~~this representation and warranty shall not apply~~ the Company makes no representations, warranties or agreements as to ~~any statements~~ information contained in or ~~omissions made~~ omitted from the Registration Statement or Prospectus in reliance ~~upon~~ upon, and in conformity ~~with~~ with, written information ~~relating to any Underwriter furnished~~ finished to the Company by the Underwriters expressly for use therein, it being understood that the only information supplied by the Underwriters in writing ~~by such Underwriter through the Representatives expressly~~ for use in the ~~Preliminary Prospectus; and (v) Other than~~ Registration Statement, the ~~Preliminary~~ preliminary prospectus or the Prospectus ~~and~~ are set forth in the last paragraph on the cover of the Prospectus, the ~~Company (including its agents~~ paragraphs under the table under the heading "Underwriting," the paragraphs under the headings "Underwriting--Over-Allotment Option" and ~~representatives other than~~ "Underwriting--Warrants", and the second paragraph under the "Underwriting--Lock-Up Agreements" in the Prospectus and that no information has been omitted from the Registration Statement in reliance on information supplied by the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Noteswriting. (bc) The financial statements of the Company set forth in the Registration Statement and Prospectus present fairly, in an material respects, the financial condition of the Company as of the dates indicated and the results of operations and cash flows of the Company for the periods therein specified in conformity with generally accepted accounting principles consistently applied throughout the periods involved (except as otherwise stated therein). No other financial statements of the Company are required by Form S-1 or otherwise to be included in the Registration Statement or Prospectus. (d) Xxxxxxx X. Xxxxxx & Company, the accountants who have expressed their opinion with respect to certain of the financial statements included in the Registration Statement, ("Company Accountants") are independent accountants as required by the Securities Act and the Rules and Regulations. (e) The Company has been duly organized and is validly existing ~~as a Virginia limited liability company~~ in good standing under the laws of ~~the Commonwealth~~ its jurisdiction of ~~Virginia~~incorporation. The Company ~~has, in~~ has all ~~material respects, full~~ requisite power and authority to ~~own~~ own, lease and operate its properties and to conduct its business as is described in the ~~Preliminary~~ Prospectus, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and . The Company is duly qualified to do business as a foreign corporation and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which such qualification is required, except where the failure to so qualify ~~or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would~~ will not have a material adverse effect on the Company~~’s ability~~ . (f) The authorized, issued and outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectus and the issued and outstanding shares of Common Stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable, were issued in compliance in all material respects with all applicable federal and state securities laws, and were not issued in violation of or subject to ~~consummate~~ any preemptive rights, rights of first refusal or similar rights. The sale of the ~~transactions contemplated by~~ Shares has been duly authorized and after issuance of and payment for the ~~Pooling and Servicing~~ Shares in accordance with this Agreement, the ~~Receivables Purchase Agreements~~Shares will be validly issued, fully paid and nonassessable and conform to the description thereof contained in the Prospectus. The Underwriters will acquire good and marketable title to the Shares, free and clear of any adverse claims whatsoever. Except as disclosed in the Prospectus, the Company does not make outstanding any options or warrants to purchase, any preemptive rights or other rights to subscribe for or to purchase, any securities or obligations convertible into shares of its capital stock, or any contracts or commitments to issue or sell such shares, or any such options, warrants, rights, convertible securities or obligations. (g) The Company has filed an application to list the Shares on the Nasdaq National Market ("Nasdaq National Market") and has received notification that the listing has been approved, subject to notice of issuance of the Shares. (h) Subsequent to the respective dates as of which information is given in the Registration Statement and Prospectus, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, or entered into any transaction not in the ordinary course of business, which is material to the business of the Company, and there has not been any change in the capital stock of, or any incurrence of short-term or long-term debt by, the Company or any issuance of options, warrants or other rights to purchase the capital stock of the Company or any adverse change or any development involving, so far as the Company can now reasonably foresee a prospective adverse change in the condition (financial or other), net worth, results of operations, business, key personnel or properties of it which would be material to the business or financial condition of the Company. (i) Except as set forth in the Prospectus, there is not pending or, to the best knowledge of the Company, threatened, any action, suit or proceeding to which the Company is a party, before or by any court, governmental agency or body or arbitration body, that could reasonably be expected to result in any material adverse change in the financial condition, business, properties, prospects, or results of operations of the Company, or might materially and adversely affect the properties or assets thereof. (j) There are no contracts or documents that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations that have not been so filed. Any contract, agreement, instrument, lease or license required to be described in the Registration Statement or the Prospectus has been properly described therein in all material respects. (k) Except as set forth in the Prospectus, the Company owns or has valid leasehold interests in all material properties and assets required for the operation of its business as now conducted or as proposed to be conducted as set forth in the Registration Statement and prospectus. The Company has good and marketable title to all properties and assets owned by it material to its business subject, except as set forth in the Prospectus, to no lien, mortgage, pledge, charge or encumbrance. All leases to which the Company is a party are valid, subsisting and enforceable and no material default by the Company has occurred and is continuing thereunder, and the Company enjoys peaceful and undisturbed possession under an such leases to which it is a party as lessee. (l) The Company has full right, power and authority to enter into this Agreement and the ~~applicable Terms Agreement. (c)~~ Pricing Agreement and to perform all of its obligations hereunder and thereunder. The execution, delivery and performance ~~by the Company~~ of ~~the Pooling and Servicing Agreement, the Receivables Purchase Agreements,~~ this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery Pricing Agreement by the Company ~~of such instruments~~does not and will not violate, ~~nor the performance by the Company of the transactions herein~~ breach or ~~therein contemplated, nor the compliance by the Company~~ conflict with ~~the provisions hereof or thereof, will~~ (i) ~~conflict with~~ the Certificate of Incorporation or ~~result in a breach of any~~ Bylaws of the ~~material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company,~~ Company or (ii) ~~conflict with~~ any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument agreement to which the Company is a party or by which it the Company or any of its properties is bound, excluding any violation, breach or conflict which would not have a material and adverse effect on the Company or its properties, business, prospects or financial condition or on the consummation of the transactions contemplated hereby; or (iviii) ~~result in the creation~~ any statute or ~~imposition~~ order, rule or regulation of any ~~lien, charge~~ court or ~~encumbrance upon~~ governmental agency or body having jurisdiction over the Company or any of its properties. No consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required in connection with the ~~Company’s property pursuant to~~ transactions contemplated hereby except as may be required under the ~~terms of any such indenture, mortgage, contract~~ Securities Act or ~~other instrument. (d) The Company has duly executed and delivered this~~ state securities or "Blue Sky" laws. This Agreement ~~and the applicable Terms Agreement. (e) The Collateral Certificate~~ has been duly ~~authorized and when validly issued in accordance with the Pooling and Servicing Agreement~~authorized, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the ~~parties thereto, each of the Pooling~~ Company and ~~Servicing Agreement and the Receivables Purchase Agreements will constitute~~ constitutes a ~~legal,~~ valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company ; and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid when executed and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, delivered by the Company, the ~~Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge~~ Pricing Agreement will constitute a valid and binding obligation of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of enforceable against the Company in ~~the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects~~accordance with its terms. (m) The Company ~~was not~~has an necessary consents, approvals, authorizations, orders, registrations, qualifications, licenses and permits ("Governmental Authorizations") of and from all public, regulatory or governmental agencies and bodies, to own, lease and operate its properties and conduct its business as now being conducted and as described in the Registration Statement and the Prospectus, excluding any Governmental Authorization where the failure to have obtained such Governmental Authorization would not have a material and adverse effect on the ~~date~~ Company or its properties, business, prospects or financial condition or on ~~which~~ the ~~first bona fide offer~~ consummation of the ~~Notes sold pursuant~~ transactions contemplated hereby, and no such consent, approval authorization, order, registration, qualification, license or permit contains a materially burdensome restriction not adequately disclosed in the Registration Statement and the Prospectus. The Company is in compliance in all material respects with all local state and Federal laws, rules and regulations including, but not limited to, environmental laws and regulations governing the use, storage, discharge, handling, emission, generation, manufacture and disposal of toxic substances, hazardous materials, waste and other substances or products used in or resulting from the buses of the Company. (n) Except as provided for in this Agreement, the Company has not taken and will not take, directly or indirectly, any action designed to cause or result in, or which constitutes or which might reasonably be expected to constitute, the stabilization or manipulation of the price of shares of the Common Stock of the Company to facilitate the sale or resale of the Shares. (o) Except as set forth in the Prospectus, the Company owns or possesses adequate licenses or other rights to use all patents, trademarks, service marks, trade names, copyrights, technology and know-how necessary to conduct the businesses as now conducted by the Company as described in the Prospectus, and, except as disclosed in the Prospectus, the Company has not received any notice of infringement of or conflict with (or knows of such infringement of or conflict with) asserted rights of others with respect to any patents, trademarks, service marks, trade names, copyrights or know-how which, individually or in the aggregate, could reasonably be expected to result in any material adverse effect upon the financial condition, business, properties, prospects, or results of operations of the Company, and, except as disclosed in the Prospectus and to the ~~applicable Terms Agreement was made~~knowledge of the Company, ~~an “ineligible issuer”~~ the Company does not in the conduct of its business as ~~defined~~ now conducted as described in ~~Rule 405 under~~ the ~~Act~~Prospectus, infringe or conflict with any right or patent of any third party, or any discovery, invention, product or process which is the subject of a patent application filed by any third party, known to the Company, where such infringement or conflict could reasonably be expected to result in any material adverse effect upon the financial condition, business, properties, prospects or results of operations of the Company. (p) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that: (1) transactions are executed in accordance with management's general or specific authorizations; (2) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (3) access to assets is permitted only in accordance with management's general or specific authorization; and

Appears in 1 contract

Samples: Underwriting Agreement (Life Medical Sciences Inc)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (~~a) (~~i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act, including that certain issuer free writing prospectus filed by the Company or any of its co-registrants with the Commission on or about June 1, 2022 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) Except as described in the Disclosure Materials, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of any Program Agreement to which it is a party, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth in any Program Agreement to which it is a party, which if adversely determined would materially and adversely affect the Collateral Certificate or the Notes, or the validity or enforceability of such Program Agreement, or (C) seeking adversely to affect the United States Federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary—Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (e) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (ef) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. ~~When executed and delivered by the parties thereto, each~~ Each of the Pooling and Servicing Agreement, the Transfer Agreement and the Receivables Purchase ~~Agreements will constitute~~ Agreement constitutes a ~~legal,~~ valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of or filings with any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the consummation of the transactions set forth in the Program Agreements, the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (fg) (i) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. (gii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Company has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act. (h) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (hi) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (ij) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (jk) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (kl) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (lm) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (mn) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (o) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes. (p) The Company has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act 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 Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Representations, Warranties and Covenants of the Company. ~~Upon the execution of the applicable Terms Agreement~~The Company hereby represents and warrants to, and covenants with, the ~~Company represents~~Investor, ~~warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified)~~ as follows: 3.1 The Company has filed with the Securities and Exchange Commission (athe “Commission”) ~~(i) A~~ a “shelf” registration statement on Form S-3 (~~Nos~~Registration No. 333-~~130862, 000-000000-00 and 333-130862-02~~113500), ~~including a prospectus and such amendments thereto as may have been required to the date hereof~~which has become effective, relating to the ~~offering~~ Common Stock of ~~notes as described therein from time to time in accordance with Rule 415~~ the Company, under the Securities Act ~~has been filed with~~ of 1933, as amended (the “Act”), and the rules and regulations (collectively referred to as the “Rules and Regulations”) of the Commission ~~(which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and such~~ promulgated thereunder. The registration statement, as ~~amended~~amended as of the date of this Agreement, including the exhibits and information (if any) deemed to be part of the registration statement pursuant to Rule 430A or 434(d) under the Act, is hereinafter referred to as the “Registration Statement.” No stop order suspending the effectiveness of the Registration Statement has ~~become effective; such registration statement~~been issued and, ~~as amended, and the prospectus relating~~ to the ~~sale~~ Company’s knowledge, no proceeding for that purpose has been initiated or threatened by the Commission. The Company, if required by the Rules and Regulations of the ~~Notes offered thereby constituting a part thereof~~Commission, proposes to file the Prospectus (as ~~from time~~ defined below) with the Commission pursuant to ~~time amended or supplemented (including any prospectus~~ Rule 424(b) of the Rules and Regulations. The Prospectus, in the form in which it is to be filed with the Commission pursuant to Rule 424(b) of the ~~rules and regulations of the Commission (the “~~Rules and Regulations~~”) under~~ , or, if the ~~Act~~Prospectus is not to be filed with the Commission pursuant to Rule 424(b), ~~are respectively~~ the Prospectus in the form included as part of the Registration Statement at the time the Registration Statement became effective, is hereinafter referred to ~~herein~~ as the “Prospectus,” except that if any revised prospectus or prospectus supplement shall be provided to the Placement Agents by the Company for use in connection with the offering and sale of the Shares which differs from the Prospectus (whether or not such revised prospectus or prospectus supplement is required to be filed by the Company pursuant to Rule 424(b) of the Rules and Regulations), the term “Prospectus” shall refer to such revised prospectus or prospectus supplement, as the case may be, from and after the time it is first provided to the Placement Agents for such use. Any preliminary prospectus or prospectus subject to completion included in the Registration Statement or filed with the Commission pursuant to Rule 424 under the Act is hereafter called a “Preliminary Prospectus.” Any reference herein to the Registration Statement~~” and the “Prospectus”; provided that a supplement to~~ , any Preliminary Prospectus or the Prospectus ~~prepared pursuant to Section 7(a) of this Agreement~~ shall be deemed to ~~have supplemented~~ refer to and include the ~~Prospectus only with respect~~ documents incorporated by reference therein pursuant to ~~the offering~~ Item 12 of ~~the Notes to which it relates; and the conditions to the use of a registration statement on~~ Form S-3 which were filed under the ~~Act~~Securities Exchange Act of 1934, as ~~set forth in~~ amended (the ~~General Instructions~~ “Exchange Act”) on or before the last to ~~Form S-3, and the conditions~~ occur of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the Registration Statement, the Preliminary Prospectus and the Prospectus, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Preliminary Prospectus that has previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) On the effective date of the Registration Statement, the date of the Preliminary Prospectus, or the date of the Prospectus, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include (i) the filing of any document under the Exchange Act after the effective date of the Registration Statement, the date of such Preliminary Prospectus or the date of the Prospectus, as the case may be, which is incorporated therein by reference and (ii) any such document so filed. 3.2 As of the date hereof, and at the Closing, the Registration Statement ~~conformed~~ (and any post-effective amendment thereto) and the Prospectus (as amended or as supplemented if the Company shall have filed with the Commission any amendment or supplement to the Registration Statement or the Prospectus) complied and will comply in all material respects with ~~the applicable requirements of~~ the Act and the Rules and Regulations, and did not ~~include~~ and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the light of the circumstances under which they were made, in the case of the Prospectus) not ~~misleading and~~misleading, on each Preliminary Prospectus, as of the ~~Closing Date, the Registration Statement and the Prospectus will conform in all material respects~~ date filed with the ~~applicable requirements of the Act and the Rules and Regulations~~Commission, ~~and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein~~ did not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Prospectus; (iv) The Preliminary Prospectus at the Time of Sale did not, and at the Closing Date will not, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (it being understood~~ misleading; except that no representation or warranty is made in this Section 3.2 with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with written information ~~relating to any Underwriter~~ furnished to the Company ~~in writing~~ by ~~such Underwriter through~~ the ~~Representatives~~ Placement Agents expressly for ~~use~~ inclusion in ~~the~~ any Preliminary Prospectus~~; and~~ , the Registration Statement, or the Prospectus, or any amendment or supplement thereto, it being understood and agreed upon that the only such information furnished to the Company consists of the following: the statements set forth (vi) ~~Other than~~ under the heading “Plan of Distribution,” (ii) on the cover page and (iii) on the back cover in any Preliminary Prospectus and the Prospectus. 3.3 The consolidated financial statements and the related notes thereto included or incorporated by reference in the Registration Statement and the Prospectus comply with the applicable requirements of the Act and the Exchange Act, as applicable, and present fairly, the consolidated financial position of the Company as of the dates indicated and its consolidated results of operations and its consolidated cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby (~~including~~ except as otherwise stated therein and subject, in the case of unaudited financial statements, to the absence of footnotes and normal year end adjustments), and the other financial information included or incorporated by reference in the Registration Statement and the Prospectus has been derived from the accounting records of the Company and its ~~agents~~ Subsidiaries and ~~representatives other than~~ presents fairly the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notesinformation shown thereby. ~~(b)~~ 3.4 The Company ~~has been~~ and its subsidiaries listed in Exhibit 22.1 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2004 (the “Subsidiaries”) are each duly ~~organized and is~~ organized, validly existing as a ~~Virginia limited liability company~~ corporation and in good standing under the laws of ~~the Commonwealth~~ their respective jurisdictions of ~~Virginia~~organization. The Company ~~has~~and its Subsidiaries are each duly licensed or qualified as a foreign corporation for transaction of business and in good standing under the laws of each other jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such license or qualification, in and have all ~~material respects, full~~ corporate power and authority necessary to own ~~its~~ or hold their respective properties and to conduct ~~its business~~ their respective businesses as described in the ~~Preliminary~~ Registration Statement and the Prospectus, ~~and~~ except where the failure to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and is duly be so qualified ~~to do business and is~~ or in good standing (or ~~is exempt from~~ have such ~~requirements)~~power or authority would not, ~~and has obtained all necessary material licenses and approvals (except with respect to~~ individually or in the ~~securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions)~~aggregate, ~~in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would~~ have a material adverse effect ~~on each of the Company and its subsidiaries (if any), taken as a whole,~~ or ~~(ii)~~ would reasonably be expected to have a material adverse effect on the ~~Company’s ability to consummate~~ business, properties, management, consolidated financial position, stockholders’ equity or results of operations of the ~~transactions~~ Company and its Subsidiaries taken as a whole. 3.5 The issued and outstanding shares of capital stock of the Company have been validly issued, are fully paid and nonassessable and, other than as disclosed in or contemplated by the ~~Pooling~~ Registration Statement or the Prospectus, are not subject to any preemptive or similar rights. The Company has an authorized, issued and ~~Servicing Agreement~~outstanding capitalization as set forth in the Registration Statement and the Prospectus as of the dates referred to therein (other than the grant of additional options under the Company’s existing stock option plans, or changes in the number of outstanding shares of Common Stock of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable for, or convertible into, shares of Common Stock outstanding on the date hereof, including without limitation issuances of shares under the Company’s employee stock purchase plan) and such authorized capital stock conforms to the description thereof set forth in the Registration Statement and the Prospectus. The description of the securities of the Company in the Registration Statement and the Prospectus is complete and accurate in all material respects. Except as disclosed in or contemplated by the Registration Statement or the Prospectus, as of the date referred to therein, the ~~Receivables Purchase Agreements~~Company did not have outstanding any options to purchase, ~~this Agreement and the applicable Terms Agreement~~or any rights or warrants to subscribe for, or any securities or obligations convertible into, or exchangeable for, or any contracts or commitments to issue or sell, any shares of capital stock or other securities. ~~(c)~~ 3.6 The ~~execution, delivery and performance~~ Shares have been duly authorized by the Company of and, when issued and delivered and paid for as provided herein, will be validly issued, fully paid and nonassessable and will conform to the ~~Pooling and Servicing Agreement,~~ descriptions thereof in the ~~Receivables Purchase Agreements, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate~~ Prospectus; and the issuance of the ~~Notes and the consummation of the transactions contemplated hereby and thereby,~~ Shares is not subject to any preemptive or similar rights that have not been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrumentwaived. ~~(d) The Company has duly executed and delivered this~~ 3.7 This Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase Agreements will constitute constitutes a ~~legal,~~ valid and binding obligation of the ~~Company,~~ Company enforceable against the Company in accordance with its terms, except ~~to the extent that the~~ as enforceability ~~thereof~~ may be ~~subject to~~ limited by applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar ~~occurrence~~ laws affecting ~~the Company~~ creditors’ and contracting parties’ rights generally and except as enforceability may be subject to general principles of ~~equity. All approvals, authorizations, consents, orders~~ equity (regardless of whether such enforceability is considered in a proceeding in equity or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictionsat law), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders. (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreements and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase Agreements will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act.

Appears in 1 contract

Samples: Purchase Agreement (Dyax Corp)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (a) (i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including ~~a prospectus~~ the Prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission (which may have included one or more preliminary prospectuses and prospectus supplements meeting the requirements of Rule 430 of the Act) and ~~such registration statement~~the Registration Statement, as amended, has become effective; , remains effective and the conditions to the use of such ~~registration statement~~Registration Statement, as ~~amended~~set forth in the General Instructions to Form S-3, and the ~~prospectus relating to the sale~~ conditions of ~~the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to~~ Rule ~~424(b) of the rules and regulations of the Commission (the “Rules and Regulations”)~~ 415 under the Act), ~~are respectively referred~~ have been satisfied with respect to ~~herein as~~ the “Registration Statement~~” and the “Prospectus”~~; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; and the conditions to the use of a registration statement on Form S-3 under the Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and the Rules and ~~Regulations,~~ Regulations and ~~neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to information contained in or omitted from either of the documents based upon written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use in connection with the preparation of the Registration Statement or the ProspectusUnderwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information; and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about November 14, 2013 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”). (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (e) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. When executed and delivered by the parties thereto, each of the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (f) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the 0000 Xxx. (g) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (h) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (i) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (j) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (k) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (l) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (m) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (n) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Master Trust)

Representations, Warranties and Covenants of the Company. Upon the execution of the applicable Terms Agreement, the Company represents, warrants and covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows: (~~a) (~~i) ~~A registration statement on Form S-3 (Nos. 333-130862, 000-000000-00 and 333-130862-02)~~The Registration Statement, including a the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of ~~notes as described therein from time to time in accordance with Rule 415 under~~ the ~~Act~~ Notes has been filed with the Commission ~~(which may have included one or more preliminary prospectuses~~ and ~~prospectus supplements meeting~~ the ~~requirements of Rule 430 of the Act) and such registration statement~~Registration Statement, as amended, has become effective~~; such registration statement~~, as amended, and the prospectus relating to the sale of the Notes offered thereby constituting a part thereof, as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act), are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided that a supplement to the Prospectus prepared pursuant to Section 7(a) of this Agreement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Notes to which it relates; remains effective and the conditions to the use of ~~a registration statement on Form S-3 under the Act~~such Registration Statement, as set forth in the General Instructions to Form ~~S-3~~SF-3, and the conditions of Rule 415 under the Act, have been satisfied with respect to the Registration Statement; (ii) As of the Closing Date, the ~~Registration Statement, the Preliminary Prospectus and the Prospectus~~Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest ~~Preliminary Prospectus~~ Disclosure Materials that ~~has~~ have previously been furnished to the Representatives) as the Company has advised the Representatives, before such time, will be included or made therein; (iii) (A) On the effective date of the Registration Statement, the Registration Statement ~~conformed~~ (1) complied in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and~~ (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading ~~and,~~ and (B) on the Closing Date, the Registration Statement and the Prospectus (1) will ~~conform~~ comply in all material respects with the applicable requirements of the Act and ~~the Rules and Regulations, and neither of such documents~~ (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the ~~foregoing does not apply~~ Company makes no representation or warranty with respect to ~~information contained~~ any statements or omissions made in ~~or omitted from either of the documents based~~ reliance upon ~~written information furnished to the Company or the Issuer by the Underwriters through the Representatives specifically for use~~ and in ~~connection~~ conformity with ~~the preparation of the Registration Statement or the Prospectus~~Underwriter Information (as defined below); (iv) The Preliminary Prospectus, when taken together with the Ratings Issuer Free Writing Prospectus (as defined below) and the Canadian Notice Issuer Free Writing Prospectus (as defined below), did not, at the Time of ~~Sale did~~ Sale, and will not, ~~and at~~ on the Closing ~~Date will not~~Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that ~~this~~ the Company makes no representation ~~and~~ or warranty ~~shall not apply~~ with respect to any statements or omissions made in reliance upon and in conformity with ~~information relating to any~~ Underwriter ~~furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Preliminary Prospectus~~Information (as defined below); and (v) Other than the Preliminary Prospectus and the Prospectus, the Company (including its co-registrants, agents and ~~representatives~~ representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Company or any of its co-registrants with the Commission in accordance with Rule 433 under the Act, including (A) that certain issuer free writing prospectus filed by the Company or any of its co-registrants with the Commission on or about March 18, 2022 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Seller to rate the Notes (the “Hired NRSROs”), and (B) that certain issuer free writing prospectus filed by the Company or any of its co-registrants with the Commission on or about March 22, 2022 (the “Canadian Notice Issuer Free Writing Prospectus”), which discloses notices to certain prospective Canadian investors as contemplated under Canadian law. (b) The Company has been duly organized and is validly existing as a Virginia limited liability company under the laws of the Commonwealth of Virginia. The Company has, in all material respects, full power and authority to own its properties and conduct its business as described in the ~~Preliminary Prospectus~~Disclosure Materials, and to execute, deliver and perform the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement and to authorize the sale of the Notes, and to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and is in good standing (or is exempt from such requirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in each jurisdiction in which failure to so qualify or obtain such licenses and approvals (i) would have a material adverse effect on each of the Company and its subsidiaries (if any), taken as a whole, or (ii) would have a material adverse effect on the Company’s ability to consummate the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement. (c) The execution, delivery and performance by the Company of the Pooling and Servicing Agreement, the Receivables Purchase ~~Agreements~~Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and the delivery of the Collateral Certificate and the issuance of the Notes and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Company. Neither the execution and delivery by the Company of such instruments, nor the performance by the Company of the transactions herein or therein contemplated, nor the compliance by the Company with the provisions hereof or thereof, will (i) conflict with or result in a breach of any of the material terms and provisions of, or constitute a material default under, any of the provisions of the limited liability company agreement of the Company, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Company or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, contract or other instrument to which the Company is a party or by which it is bound, or (iv) result in the creation or imposition of any lien, charge or encumbrance upon any of the Company’s property pursuant to the terms of any such indenture, mortgage, contract or other instrument. (d) Except as described in the Disclosure Materials, there are no actions, proceedings or investigations pending, or threatened in writing, before any court, administrative agency or other tribunal (A) asserting the invalidity of any Program Agreement to which it is a party, (B) seeking to prevent the issuance of the Collateral Certificate or the Notes or the consummation of any of the transactions set forth in any Program Agreement to which it is a party, which if adversely determined would materially and adversely affect the Collateral Certificate or the Notes, or the validity or enforceability of such Program Agreement, or (C) seeking adversely to affect the United States Federal income tax attributes of the Notes as described in the Preliminary Prospectus or the Prospectus under the headings “Prospectus Summary—Federal Income Tax Consequences” and “Federal Income Tax Consequences.” (e) The Company has duly executed and delivered this Agreement and the applicable Terms Agreement. (ef) The Collateral Certificate has been duly authorized and when validly issued in accordance with the Pooling and Servicing Agreement, duly authenticated by the Master Trust Trustee and delivered by the Company, as Beneficiary to the Owner Trustee on behalf of the Issuer pursuant to the Trust Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Pooling and Servicing Agreement. Each increase in the Collateral Certificate will have been authorized and effected in accordance with the Pooling and Servicing Agreement as of the applicable settlement date of each Note. ~~When executed and delivered by the parties thereto, each~~ Each of the Pooling and Servicing Agreement, the Transfer Agreement and the Receivables Purchase ~~Agreements will constitute~~ Agreement constitutes a ~~legal,~~ valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Company or in the event of any moratorium or similar occurrence affecting the Company and to general principles of equity. All approvals, authorizations, consents, orders or other actions of or filings with any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the consummation of the transactions set forth in the Program Agreements, the valid and proper authorization, issuance and sale of the Notes pursuant to this Agreement and the applicable Terms Agreement, or the issuance and transfer of the Collateral Certificate pursuant to the Pooling and Servicing Agreement, have been or will be taken or obtained on or before the Closing Date. (fi) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the ~~0000 Xxx~~1940 Act. (gii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of the Xxxxxxx Rule. In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Company has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act. (h) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Collateral Certificate. (hi) Except for the Underwriters, the Company has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Company nor the Issuer are under any obligation to pay any broker’s fee or commission in connection with such sale. (ij) No Pay Out Event or any event which after any applicable grace period will become a Pay Out Event is subsisting in relation to the Collateral Certificate or any other outstanding Certificates and no event has occurred which would constitute (after an issue of the Certificates) a Pay Out Event or any event which after any applicable grace period would become a Pay Out Event. (jk) Based on information currently available to, and in the reasonable belief of, the Company, the Company is not engaged (whether as defendant or otherwise) in, nor has the Company knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the ~~Noteholders~~Noteholders (as defined below). (kl) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Company of this Agreement, the applicable Terms Agreement, the Receivables Purchase ~~Agreements~~ Agreement and the Pooling and Servicing Agreement shall have been paid or will be paid by the Company at or before the Closing Date to the extent then due. (lm) As of the Closing Date, the representations and warranties of the Company in the Pooling and Servicing Agreement and the Receivables Purchase ~~Agreements~~ Agreement will be true and correct in all material respects. (mn) The Company was not, on the date on which the first bona fide offer of the Notes sold pursuant to the applicable Terms Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Act. (o) The Company has complied with Rule 193 of the Act in all material respects in connection with the offering of the Notes. (p) The Company has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act 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 Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.

Appears in 1 contract

Samples: Underwriting Agreement (Capital One Funding, LLC)

Common use of Representations, Warranties and Covenants of the Company Clause in Contracts