Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series is subject to the accuracy of the representations and warranties on the part of the Depositor herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof and thereof, to the performance by the Depositor of its obligations hereunder and thereunder and to the following additional conditions precedent: (a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations. (b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that: (i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date; (ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date; (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and (iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement. (d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default. (e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request. (f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters. (g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters. (h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date. (i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters. (j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request. (k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement. (l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 4 contracts
Samples: Underwriting Agreement (Deutsche Alt-a Securities Inc), Underwriting Agreement (Nomura Asset Acceptance Corp), Underwriting Agreement (Deutsche Mortgage Securities Inc)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series is subject to the accuracy of the representations and warranties on the part of DFS and the Depositor herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers of DFS and the Depositor made pursuant to the provisions hereof and thereof, to the performance by each of DFS and the Depositor of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of DFS or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of DFS and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of DFS and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of DFS and the Depositor Depositor, as the case may be, has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to DFS's or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Trust, the Depositor or DFS or any material adverse change in the financial position or results or operations of such Trust or Trust, the Depositor or DFS otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of DFS or the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal Federal, Missouri or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of DFS's or the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for DFS and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such the matters as the Representative shall reasonably requestset forth in Exhibit B hereto.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date and satisfactory in form and substance to the Representative and to counsel to the Underwriters, to the effect that the information in the Prospectus and Prospectus Supplement under the heading "State and Local Tax Consequences," to the extent it constitutes matters of Missouri, Illinois, California or New York law or legal conclusions with respect thereto, has been reviewed by such counsel and is correct in all material respects.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for DFS and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(h) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, DFS and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters, in substantially the form of Exhibit C hereto.
(gi) The Representative shall have received from counsel (who an officer's certificate dated the related Closing Date of the chairman of the board, the president, an executive vice president or the treasurer of each Trustee in which such officer shall be satisfactory state that, to the Representativebest of his/her knowledge after reasonable investigation, the representations and warranties of such Trustee contained in the related Agreement are true and correct in all material respects, and that such Trustee has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied under the related Agreement at or prior to such Closing Date.
(j) for each ServicerEach Trustee shall have furnished to the Representative a certificate of the Trustee, an opinionsigned by one or more duly authorized officers of such Trustee, dated the related Closing Date, addressed as to the Underwriters due acceptance of the related Agreement by such Trustee and the Depositor due execution and satisfactory in form delivery of the Securities of such Series by such Trustee thereunder and substance to such other matters as the Representative and to counsel to the Underwritersshall reasonably request.
(hk) Counsel to DFS and the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(il) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(jm) The Representative shall have received a copy of (i) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables by DFS to the Depositor, identifying such Receivables as collateral and naming DFS as debtor and the Depositor as the secured party, (ii) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables by the Depositor to the Owner Trustee pursuant to the related Agreement, identifying such Receivables as collateral and naming the Depositor as debtor and the Trust as the secured party, and (iii) if applicable, a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the grant of the related Receivables by the Trust to the Indenture Trustee pursuant to the related Indenture, identifying such Receivables as collateral and naming the Trust as debtor and the Indenture Trustee as the secured party.
(n) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and DFS and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(ko) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(lp) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor any Trust by any "nationally recognized statistical rating organization" (as such term terms is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 3 contracts
Samples: Underwriting Agreement (Deutsche Recreational Asset Funding Corp), Underwriting Agreement (Deutsche Recreational Asset Funding Corp), Underwriting Agreement (Deutsche Recreational Asset Funding Corp)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m., New York time, on the day following received from Ernst & Young LLP a letter dated the date hereof confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or California authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special counsel to the Servicer, addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special tax counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Base Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Material Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust for federal income tax purposes, pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code"), as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Xxxxxxxx LLP, special counsel for Fremont, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a favorable opinion of counsel to the Master Servicer and the Trust Administrator, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Underwriters may require.
(j) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(k) The Underwriters shall have received from Hunton & Xxxxxxxx LLP and any other counsel to the Company, reliance letters addressed to the Underwriters and dated the Closing Date, with respect to each opinion delivered by such counsel to the Rating Agencies.
(l) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(m) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(n) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(o) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(p) At the Closing Date, the Underwriters shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance satisfactory to the Underwriters.
(q) On or before the Closing Date, the Underwriters shall have received from the Company a fully executed Indemnification and Contribution Agreement among the Underwriters and Fremont. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Fremont Mortgage Securities Corp), Underwriting Agreement (Fremont Mortgage Securities Corp)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series is subject to the accuracy of the representations and warranties on the part of the Depositor herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof and thereof, to the performance by the Depositor of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president an authorized officer of the Depositor to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Nomura Home Equity Loan, Inc.), Underwriting Agreement (Nomura Asset Acceptance Corp)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche LLP a letter, New York time, on the day following dated the date hereof, confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or North Carolina authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of counsel to the Servicer addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special tax counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Basic Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Material Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust for federal income tax purposes, pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code"), as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Xxxxxxxx LLP, special counsel for BofA, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for the Trustee, in each case addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(j) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Hunton & Xxxxxxxx LLP, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(m) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(n) At the Closing Date, the Underwriters shall have received from Hunton & Xxxxxxxx LLP, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance satisfactory to the Underwriters.
(o) On or before the Closing Date, the Underwriters shall have received from the Company (i) a fully executed Indemnification and Contribution Agreement among the Underwriters, the Company and the Servicer, and (ii) a fully executed Indemnification and Contribution Agreement among the Underwriters, the Company and Accredited Home Lenders, Inc. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 2 contracts
Samples: Underwriting Agreement (Abfc Asset Backed Certificates Series 2003-Ahl1), Underwriting Agreement (Asset Backed Funding Corp Abfc Asset Backed Ser 2004-Ahl1)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from each of Ernst & Young LLP and KPMG LLP, New York time, on the day following a letter dated the date hereof confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or California authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of counsel to the Servicer addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Williams LLP, special tax counsel for the Company, addressed to the Unxxxxxxxxrs, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Base Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Material Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust for federal income tax purposes, pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code"), as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of Hunton & Williams LLP, special counsel for the Company, addressed to the Underwxxxxxx, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Williams LLP, special counsel for Fremont, addressed to the Underwritexx, xxxxd the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of in-house counsel to Financial Guaranty Insurance Company addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(j) The Underwriters shall have received a favorable opinion of counsel to the Master Servicer and the Trust Administrator, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Underwriters may require.
(k) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(l) The Underwriters shall have received from Hunton & Williams LLP and any other counsel to the Company, reliance letters adxxxxxxx to the Underwriters and dated the Closing Date, with respect to each opinion delivered by such counsel to the Rating Agencies.
(m) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(n) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(o) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, is material and is rxxxxxxx to xx stated therein or is necessary to make the statements therein not misleading.
(p) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(q) At the Closing Date, the Underwriters shall have received from Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, a letter with respecx xx xxe Fxxxx Prospectus, in form and substance satisfactory to the Underwriters.
(r) On or before the Closing Date, the Underwriters shall have received from the Company a fully executed Indemnification and Contribution Agreement among the Underwriters and the Servicer. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Fremont Mortgage Securities Corp)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series Notes is subject to the accuracy of the representations and warranties on the part of GECC and the Depositor Seller herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC, GECC Tennessee and the Depositor Seller made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC, GECC Tennessee and the Depositor Seller of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the DepositorSeller, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor Each of GECC, GECC Tennessee and the Seller shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC, GECC Tennessee or the Seller, as applicable, to the effect that the signer and/or persons for whom the signer has management authority of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC, GECC Tennessee and/or the Depositor Seller, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC, GECC Tennessee and the Depositor Seller, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's Seller’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement or the Prospectus, each as amended and supplemented as of such Closing Date Date, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Seller, or any material adverse change in the financial position or results or operations of such Trust the Company, the Seller, GECC or the Depositor GECC Tennessee otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Notes on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC, GECC Tennessee, GECS and the DepositorSeller, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect relating to such matters as the Representative shall reasonably requestcertain corporate, securities law and security interests matters.
(e) [Reserved].
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC, GECC Tennessee and the Seller, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor Seller and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to GECC and the Depositor Seller shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by GECC, GECC Tennessee and/or the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor Seller shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities Class A-1 Notes shall have been rated no less than “P1” by Mxxxx’x Investors Services, Inc. (“Moody’s”), “A-1+” by Standard & Poor’s Ratings Services, a division of The MxXxxx-Xxxx Companies, Inc. (“S&P”) and “F-1+” by Fitch, Inc. (“Fitch”), each of the related Series Class A-2 Notes, the Class A-3a Notes, the Class A-3b Notes and the Class A-4 Notes shall have received each been rated no less than “Aaa” by Moody’s and “AAA” by S&P and Fitch, the Class B Notes shall have been rated no less than “A2” by Mxxxx’x and “A” by S&P and Fitch and the Class C Notes shall have been rated investment grade by at least two nationally recognized rating agencies, such ratings specified in shall not have been rescinded, and no public announcement shall have been made by the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in respective rating the direction of which has not been indicated, in agencies that the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act)Notes have been placed under review. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor Seller at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters Underwriter to purchase and pay for the Securities of a Series is Notes shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriter shall have become effective not later than 4:00 p.m.received from Deloitte & Touche LLP a letter, New York time, on the day following dated the date hereof, confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the regulations of the commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter and counsel for the Underwriter.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Notes shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriter, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriter, materially impairs the investment quality of the related Securities, Notes; (ii) any material adverse change downgrading in the financial markets in rating of the United States Notes of the Company by any “nationally recognized statistical rating organization” (as such term is defined for purposes of Rule 436(g) under the Act), or any outbreak public announcement that any such organization has under surveillance or review its rating of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment any securities of the RepresentativeMaster Servicer or the Receivables Servicer (other than an announcement with positive implications of a possible upgrading, impracticable or inadvisable to market such Securities or to enforce contracts for the sale and no implication of a possible downgrading, of such Securities, rating); (iii) the any suspension or limitation of trading in securities generally by either the American Stock Exchange or on the New York Stock Exchange, or the establishment any setting of minimum or maximum prices or ranges of prices, by either of for trading on such exchanges or by order of the Commission or any other governmental authority, or exchange; (iv) any banking moratorium declared by federal or federal, New York authorities or North Carolina authorities; or (ivv) any event that would constitute a default under such Terms Agreement outbreak or this Underwriting Agreement escalation of major hostilities in which the United States is involved, any declaration of war by Congress or default any other substantial national or international calamity or emergency if, in the performance reasonable judgment of the Depositor's obligations under Underwriter, the effects of any related Agreement such outbreak, escalation, declaration, calamity or whichemergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes.
(d) The Underwriter shall have received a favorable opinion or opinions from Rxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Company, addressed to the Underwriter, dated the Closing Date, in form and substance satisfactory to the Underwriter and their counsel, with respect to: (i) certain matters under Delaware law with respect to the passage Company and the authority of time or the giving of notice or bothCompany to file a voluntary bankruptcy petition, would constitute such default(ii) certain corporate matters with respect to the Company, and (iii) certain matters under Delaware law with respect to the Issuer.
(e) The Representative Underwriter shall have received from a favorable opinion of Mayer, Brown, Rxxx & Maw LLP, special tax counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing DateCompany, addressed to the Underwriters Underwriter, dated the Closing Date and reasonably satisfactory in form and substance to the Representative and to counsel Underwriter, generally to the Underwriterseffect that the information in the preliminary prospectus included in the Time of Sale Information under “Material Federal Income Tax Consequences” and in the Final Prospectus under “Material Federal Income Tax Consequences,” insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects.
(f) The Underwriter shall have received a favorable opinion of Mayer, Brown, Rxxx & Maw LLP, special counsel for the Company, addressed to the Underwriter, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriter, with respect to the validity of the Notes and such other related matters as the Underwriter shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriter shall have received a favorable opinion of counsel of Mayer, Brown, Rxxx & Maw LLP, special counsel for BANA, addressed to the Underwriter, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the UnderwritersUnderwriter may require.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative Underwriter shall have received a letterfavorable opinion of counsel for the Indenture Trustee, in each case addressed to the Underwriter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative Underwriter and counsel for the Underwriter, with respect to such matters as the Underwriter may require.
(i) The Underwriter shall have received a favorable opinion of counsel for the Owner Trustee, in each case addressed to the Underwriters; Underwriter, dated the Closing Date and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative Underwriter and counsel for the Underwriter, with respect to such matters as the Underwriter may require.
(j) The Underwriter shall have received a favorable opinion of in-house counsel to BANA, in each case addressed to the Underwriters; Underwriter, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, with respect to such matters as the Underwriter may require.
(k) The Underwriter shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Receivables contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the certificate of formation or limited liability company agreement of the Company, and no such amendment has been authorized.
(l) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to the Underwriter that each class of Notes has been given the ratings set forth on Schedule I hereto.
(m) At the Closing Date, the Notes and the Depositor shall furnish the Representative and counsel Indenture will conform in all material respects to the Underwriters descriptions thereof contained in the Final Prospectus.
(n) The Underwriter shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(o) All corporate and limited liability company proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Indenture, the other Basic Documents, the Notes, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriter, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(p) At the Closing Date, the Underwriter shall have received from Mayer, Brown, Rxxx & Maw LLP, counsel for the Underwriter, a letter with respect to the Preliminary Prospectus included in the Time of Sale Information, in form and substance satisfactory to the Underwriter.
(q) On or before the Closing Date, the Underwriter shall have received from the Company a fully executed Indemnification and Contribution Agreement among the Underwriter, the Company and the Servicer.
(r) On the Closing Date, the Underwriter shall have received a fully executed copy of each of the Basic Documents.
(s) The Issuer shall have delivered to DTC (or an approved custodian therefor) each of the global Notes described in Schedule I hereto, duly executed by the Issuer and authenticated by the Indenture Trustee.
(t) The Issuer shall have executed and delivered to DTC a standard “letter of representations” sufficient to cause DTC to qualify each Class of Notes for inclusion in DTC’s book-entry registration and transfer system.
(u) The Trust Accounts shall have been established in accordance with the terms of the Indenture.
(v) The Indenture shall have been qualified pursuant to the Trust Indenture Act of 1939, as amended. The Company will provide or cause to be provided to the Underwriter such other conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall Underwriter may reasonably request.
(k) The Securities of . All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the related Series shall have received provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act)Underwriter. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriter by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Banc of America Securities Auto Trust 2006-G1)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series is subject to the accuracy of the representations and warranties on the part of the Depositor herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Dateeach Participating Entity herein, to the accuracy of the statements of officers of the Depositor each Participating Entity made pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor each Participating Entity of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representativeeffective; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositorany Participating Entity, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and 1933 Act Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and 1933 Act Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-post- effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and 1933 Act Regulations.
(b) The Depositor Each Participating Entity shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such the Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Designated Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor such Participating Entity in this Underwriting each Designated Agreement and the related Terms this Agreement are true and correct in all material respects at and as of such the Closing Date with the same effect as if made on such the Closing Date;
(ii) the Depositor such Participating Entity has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such the Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or or, to the Depositor's knowledgeknowledge of such Participating Entity, threatened as of such the Closing Date; and
(iv) nothing has come to such personPerson's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplementas amended or supplemented, there shall not have occurred any material adverse change or any development involving a prospective material adverse change change, in or affecting particularly the business or assets of the related Trust or the Depositor any Participating Entity or any material adverse change in the financial position or results or operations of such the Trust or the Depositor any Participating Entity otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or to inadvisable in the Representative's reasonable judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplementas amended or supplemented.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of any Participating Entity or the Depositor Trust which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such the Securities or to enforce contracts for the sale of such the Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal Federal, Missouri, California or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations of any Participating Entity under any related Designated Agreement to which it is a party or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall may be satisfactory an employee of a Participating Entity) to the Representative) for the DepositorParticipating Entities, an opinionone or more opinions, dated the related Closing Date, Date and addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably requestRepresentative.
(f) The Representative shall have received from special counsel (who shall be satisfactory to for the Representative) for each Trustee, Participating Entities an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor Date and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from special counsel (who shall be satisfactory to the Representative) for each ServicerDepositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Depositor Representative and to counsel to the Underwriters, relating to certain bankruptcy matters and federal income tax matters.
(h) The Representative shall have received from counsel for the Trustee, an opinion, dated the Closing Date and addressed to the Underwriters and each Participating Entity and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(hi) The Representative shall have received an officer's certificate dated the Closing Date of the chairman of the board, the president, an executive vice president or the treasurer of the Trustee in which such officer shall state that, to the best of his/her knowledge after reasonable investigation, the representations and warranties of the Trustee contained in the Pooling and Servicing Agreement are true and correct in all material respects, and that the Trustee has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied under the Pooling and Servicing Agreement at or prior to the Closing Date.]
(j) The Representatives shall have received a copy of a ratings letter confirming that the Offered Certificates have been rated in the highest rating category by at least one of [Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Services], and such ratings shall not have been reduced or withdrawn.
(k) The Trustee shall have furnished to the Representative a certificate of the Trustee, signed by one or more duly authorized officers of the Trustee, dated the Closing Date, as to the due acceptance of the Pooling and Servicing Agreement by the Trustee and the due execution and delivery of the Offered Certificates by the Trustee thereunder and such other matters as the Representative shall reasonably request.
(l) Counsel to the Depositor each Participating Entity shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesSecurities, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days Business Days prior to the related Closing Date.
(im) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from KPMG Peat Marwick LLP certified public accountants (who shall be satisfactory to the Representative)accountants, substantially in the form heretofore approved by the Representative and counsel to the Underwriters.
(jn) The Representative shall have received a copy of [(i) a file- stamped acknowledgment copy of the UCC-1 financing statement on Form UCC-1 filed with the Secretary of State of the State of Missouri with respect to the transfer of Receivables (and related items) by DFS to Ganis pursuant to the DFS/Ganis Transfer Agreement, naming DFS as debtor/transferor and Ganis as the secured party/transferee,] (ii) a file-stamped acknowledgment copy of the UCC-1 financing statement on Form UCC-1 filed with the Secretary of State of the State of California with respect to the transfer of Receivables (and related items) by Ganis to the Depositor pursuant to the Receivables Transfer Agreement, naming Ganis as debtor/transferor and the Depositor as the secured party/transferee, and (iii) a file-stamped acknowledgment copy of the UCC-1 financing statement on Form UCC-1 filed with the Secretary of State of the State of Missouri with respect to the transfer of Receivables (and related items) by the Depositor to the Trust pursuant to the Pooling and Servicing Agreement, naming the Depositor as debtor/transferor and the Trust as secured party/transferee.
(o) All documents incident to the Agreements, Terms Designated Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative Underwriters and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative Underwriters and counsel to the Underwriters; and the Depositor each Participating Entity shall furnish the Representative Underwriters and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative Underwriters or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at on or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Deutsche Recreational Asset Funding Corp)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities Certificates of a Series is subject to the accuracy of the representations and warranties on the part of CDF and the Depositor Transferor herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of CDF and the Depositor Transferor made pursuant to the provisions hereof and thereof, to the performance by each of CDF and the Depositor Transferor of its respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of CDF or the DepositorTransferor, shall be contemplated by the Commission. If the Depositor Transferor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities Certificates of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor Transferor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor Each of CDF and the Transferor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of CDF or the Transferor, as applicable, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officerperson's knowledge, the representations and warranties of CDF and/or the Depositor Transferor, as the case may be, in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of CDF and the Depositor Transferor, as the case may be, has complied with all the agreements Agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to CDF's or to the DepositorTransferor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust Trust, the Transferor, CDF or the Depositor General Electric Capital Corporation ("GECC") or any material adverse change in the financial position or results or operations of such Trust the Trust, the Transferor, CDF or the Depositor GECC otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Certificates on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of CDF or the Depositor Transferor which, in the Representative's judgment, materially impairs the investment quality of the related SecuritiesCertificates, (ii) any material adverse change in the financial markets in the United States or any outbreak or escalation of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities Certificates or to enforce contracts for the sale of such SecuritiesCertificates, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal federal, Missouri or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of CDF's or the DepositorTransferor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for CDF and the DepositorTransferor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such the matters as the Representative shall reasonably requestset forth in Exhibit B hereto.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trusteethe Transferor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor Date and satisfactory in form and substance to the Representative and to counsel to the Underwriters, to the effect that the information in the Prospectus Supplement under the heading "State and Local Tax Consequences," to the extent it constitutes matters of Missouri law or legal conclusions with respect thereto, has been reviewed by such counsel and is correct in all material respects.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each ServicerCDF and the Transferor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Depositor Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(h) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters, CDF and the Transferor and satisfactory in form and substance to the Representative and to counsel to the Underwriters, in substantially the form of Exhibit C hereto.
(hi) The Representative shall have received an officer's certificate dated the related Closing Date of the chairman of the board, the president, an executive vice president, the treasurer or other officer acceptable to the Representative of the Trustee (or its agent, as applicable) in which such officer shall state that, to the best of his/her knowledge after reasonable investigation, the representations and warranties of the Trustee contained in any Agreement are true and correct in all material respects, and that the Trustee has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied under each related Agreement at or prior to such Closing Date.
(j) The Trustee (and its agent, as applicable) shall have furnished to the Representative a certificate of the Trustee, signed by one or more duly authorized officers of the Trustee (and its agent, as applicable), dated the related Closing Date, as to the due acceptance of the Agreements by the Trustee and the due execution and delivery of the Certificates of such Series by the Trustee (or its agent, as applicable) thereunder and such other matters as the Representative shall reasonably request.
(k) Counsel to CDF and the Depositor Transferor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities Certificates of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(il) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(jm) The Representative shall have received a copy of (i) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables by CDF to the Transferor, identifying such Receivables as collateral and naming CDF as debtor and the Transferor as the secured party and (ii) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables by the Transferor to the Trust pursuant to the Agreements, identifying such Receivables as collateral and naming the Transferor as debtor and the Trust as the secured party.
(n) All documents incident to the Agreements, the related Terms Agreements Agreement and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor Transferor to authorize the offering and sale of the Securities Certificates of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and CDF and/or the Depositor Transferor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(ko) The Securities Certificates of the related Series shall have received the ratings specified in the related Terms Agreement.
(lp) On or prior to the related Closing Date, there has shall have been no downgrading, nor has shall any notice have been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor Transferor relating to any previously issued asset-backed securities of the Depositor Trust by any "nationally recognized statistical rating organization" organization (as such term is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related SecuritiesCertificates) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor Transferor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is Subject Notes on the Closing Date are subject to the accuracy of the representations and warranties on the part of GECC and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC and the Depositor of its their respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement or the Prospectus, each as amended and supplemented as of such Closing Date or the Preliminary Prospectus, as of the Time of Sale, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Depositor, or any material adverse change in the financial position or results or operations of such Trust or the Company, the Depositor or GECC otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Subject Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Subject Notes on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution Representative) for GECC and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with an opinion, dated the passage of time or Closing Date, addressed to the giving of notice or bothUnderwriters and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters, would constitute such defaultrelating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, an opiniona signed negative assurance letter, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters.
(h) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received (i) a letter, dated September 21, 2011, relating to the related Closing Date Preliminary Prospectus and (ii) a letter, dated September 28, 2011, relating to the Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative Underwriters and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series Notes shall have received the ratings specified in the related Terms Agreementfinal Ratings FWP (as defined below).
(l) On or prior The Representative shall have received from Xxxxxxx XxXxxxxxx LLP, counsel to the related Underwriters, a signed negative assurance letter, dated the Closing Date, there has been no downgradingaddressed to the Underwriters and satisfactory in form and substance to the Underwriters, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GE Equipment Midticket LLC, Series 2011-1)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche LLP a letter, New York time, on the day following dated the date hereof, confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or North Carolina authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of counsel to the Servicer addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special tax counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Basic Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Material Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust for federal income tax purposes, pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code"), as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Xxxxxxxx LLP, special counsel for BofA, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for the Trustee, in each case addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(j) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Hunton & Xxxxxxxx LLP, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(m) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(n) At the Closing Date, the Underwriters shall have received from Hunton & Xxxxxxxx LLP, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance satisfactory to the Underwriters.
(o) On or before the Closing Date, the Underwriters shall have received from the Company (i) a fully executed Indemnification and Contribution Agreement among the Underwriters, the Company and the Servicer, and (ii) a fully executed Indemnification and Contribution Agreement among the Underwriters, the Company and First Franklin Financial Corporation. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (ABFC Asset-Backed Certificates, Series 2004-Ff1)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche, New York time, on the day following a letter or letters dated the date hereof confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters, relating to, among other things, the information in each Disclosure Package, the Preliminary Prospectus, if any, and the Final Prospectus.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change downgrading in the financial markets in rating of the United States securities of the Company by any “nationally recognized statistical rating organization” (as such term is defined for purposes of Rule 436(g) under the Act), or any outbreak public announcement that any such organization has under surveillance or review its rating of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment any securities of the RepresentativeCompany (other than an announcement with positive implications of a possible upgrading, impracticable or inadvisable to market such Securities or to enforce contracts for the sale and no implication of a possible downgrading, of such Securities, rating); (iii) the any suspension or limitation of trading in securities generally by either the American Stock Exchange or on the New York Stock Exchange, or the establishment any setting of minimum or maximum prices or ranges of prices, by either of for trading on such exchanges or by order of the Commission or any other governmental authority, or exchange; (iv) any banking moratorium declared by federal or federal, New York authorities or California authorities; or (ivv) any event that would constitute a default under such Terms Agreement outbreak or this Underwriting Agreement escalation of major hostilities in which the United States is involved, any declaration of war by Congress or default any other substantial national or international calamity or emergency if, in the performance reasonable judgment of the Depositor's obligations under Underwriters, the effects of any related Agreement such outbreak, escalation, declaration, calamity or whichemergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of Hunton & Wxxxxxxx LLP, special counsel to the Servicer, addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the passage of time or the giving of notice or both, would constitute such defaultUnderwriters may require.
(e) The Representative Underwriters shall have received from a favorable opinion of Hunton & Wxxxxxxx LLP, special tax counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing DateCompany, addressed to the Underwriters Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Representative Underwriters, generally to the effect that (i) the information in any Disclosure Package and the Base Prospectus under “Federal Income Tax Consequences” and in the Final Prospectus under “Federal Income Tax Consequences,” insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs as of the Closing Date.
(f) The Underwriters shall have received a favorable opinion of Hunton & Wxxxxxxx LLP, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Wxxxxxxx LLP, special counsel for Fremont, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Company shall have furnished to the Underwriters a letter, dated the Closing Date, of Hunton & Wxxxxxxx LLP, special counsel to the Company stating that nothing has come to its attention that would lead such counsel to believe that (1) any Disclosure Package, as of its respective date and on the related Pricing Date, or (2) the Final Prospectus, as of its respective date and the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to financial, statistical or accounting information (including any notes and schedules relating thereto) contained or incorporated.
(i) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(j) The Underwriters shall have received a favorable opinion of counsel to Wxxxx Fargo, as master servicer and trust administrator, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Representative shall reasonably requestUnderwriters may require.
(fk) The Representative Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(l) The Underwriters shall have received from Hunton & Wxxxxxxx LLP and any other counsel (who shall be satisfactory to the Representative) for each TrusteeCompany, an opinion, dated the related Closing Date, reliance letters addressed to the Underwriters and dated the Depositor Closing Date, with respect to each opinion delivered by such counsel to the Rating Agencies.
(m) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been assigned the ratings set forth on Schedule I hereto.
(n) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(o) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Txxxxxx Xxxxxxxx & Wood LLP, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(p) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(q) At the Closing Date, the Underwriters shall have received from Txxxxxx Xxxxxxxx & Wxxx LLP, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance to the Representative and to counsel satisfactory to the Underwriters.
(gr) The Representative Underwriters shall have received from counsel (who shall be satisfactory to the Representative) for each Servicertheir counsel, an opinionThacher, dated the related Closing DatePxxxxxxx & Wxxx LLP, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed Date, stating that nothing has come to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and its attention that would lead such counsel to believe that (1) any Disclosure Package, as of its respective date and on the Underwritersrelated Pricing Date, or (2) the Final Prospectus, as of its respective date and the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to as to financial, statistical or accounting information (including any notes and schedules relating thereto) contained or incorporated.
(js) All documents incident to On or before the AgreementsClosing Date, Terms the Underwriters shall have received from the Company a fully executed Indemnification and Contribution Agreement among the Underwriters and Fremont.
(t) At the Closing Date, the Swap Agreements shall have been duly executed and this Underwriting Agreement shall be reasonably satisfactory delivered by the requisite parties, in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with and their counsel. The Company will provide or cause to be provided to the Underwriters such other conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall may reasonably request.
(k) The Securities of . All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the related Series shall have received provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act)Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Fremont Home Loan Trust 2006-B)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche, New York time, on the day following a letter dated the date hereof confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or California authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of Hunton & Williams LLP, special counsel to the Servicer, addressed to the Underwxxxxxx, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Williams LLP, special tax counsel for the Company, addressed to the Unxxxxxxxxrs, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Base Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs as of the Closing.
(f) The Underwriters shall have received a favorable opinion of Hunton & Williams LLP, special counsel for the Company, addressed to the Underwxxxxxx, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Williams LLP, special counsel for Fremont, addressed to the Underwritexx, xxxxd the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a favorable opinion of counsel to Wells Fargo, as master servicer, trust administrator and swap administxxxxx, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Underwriters may require.
(j) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(k) The Underwriters shall have received from Hunton & Williams LLP and any other counsel to the Company, reliance letters adxxxxxxx to the Underwriters and dated the Closing Date, with respect to each opinion delivered by such counsel to the Rating Agencies.
(l) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(m) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(n) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Thacher Proffitt & Wood LLP, counsel for the Underwriters, is material xxx xx xxxxxxxx to be stated therein or is necessary to make the statements therein not misleading.
(o) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(p) At the Closing Date, the Underwriters shall have received from Thacher Proffitt & Wood LLP, counsel for the Underwriters, a letter wixx xxxxxxx xx xxe Fxxxx Prospectus, in form and substance satisfactory to the Underwriters.
(q) On or before the Closing Date, the Underwriters shall have received from the Company a fully executed Indemnification and Contribution Agreement among the Underwriters and Fremont. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Fremont Mortgage Securities Corp)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is Subject Notes on the Closing Date are subject to the accuracy of the representations and warranties on of GECC, the part of Company and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC, the Company and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC, the Company and the Depositor of its their respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, any Corrected Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement, as amended and supplemented supplemented, as of such the Closing Date Date, the Time of Sale Information, as of the Time of Sale, any Corrected Prospectus as of the Updated Time of Sale, or the Prospectus, as amended and supplemented, as of its date and as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Company, the Depositor, the Titling Trust Collateral Agent, GE Title, the Titling Trust or the Depositor GECC , or any material adverse change in the financial position or results or operations of such the Company, the Depositor, the Titling Trust Collateral Agent, GE Title, the Titling Trust or the Depositor GECC otherwise than as set forth or contemplated in the Preliminary Prospectus, the Prospectus and or any Corrected Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Subject Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Subject Notes on the terms and in the manner contemplated in the related Terms Agreement and Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution and delivery of a Terms Agreement, there shall not have occurred (iRepresentative) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisisfor GECC, the effect of which is such as to make itTitling Trust Collateral Agent, in GE Title, the judgment of Titling Trust, the RepresentativeManaging Member, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of Company and the Depositor's obligations under any related Agreement or which, with an opinion, dated the passage of time or Closing Date, addressed to the giving of notice or bothUnderwriters and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters, would constitute such defaultrelating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, an opiniona signed negative assurance letter, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC, the Titling Trust Collateral Agent, GE Title, the Titling Trust, the Managing Member, the Company and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters.
(h) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the UTI Trustee, the Administrative Trustee, and the Delaware Trustee, an opinion, dated the Closing Date, addressed to the Underwriters, GECC and the Depositor and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters.
(i) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(ij) The Representative shall have received (i) a letter, dated June 18, 2014, relating to the related Closing Date Preliminary Prospectus, (ii) a letter, dated June 18, 2014, relating to the Prospectus, and (iii) if applicable, a letter dated as of the date of the Corrected Prospectus, relating to the Corrected Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative Underwriters and counsel to the Underwriters.
(jk) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(kl) The Securities of the related Series Notes shall have received the ratings specified in the related Terms Agreementfinal Ratings FWP (as defined below).
(lm) On or prior The Representative shall have received from Bxxxxxx MxXxxxxxx LLP, counsel to the related Underwriters, a signed negative assurance letter, dated the Closing Date, there has been no downgradingaddressed to the Underwriters and satisfactory in form and substance to the Underwriters, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor and the Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GE Equipment Transportation LLC, Series 2014-1)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities Certificates of a Series is subject to the accuracy of the representations and warranties on the part of DFS and the Depositor Seller herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers of DFS and the Depositor Seller made pursuant to the provisions hereof and thereof, to the performance by each of DFS and the Depositor Seller of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of DFS or the DepositorSeller, shall be contemplated by the Commission. If the Depositor Seller has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities Certificates of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor Seller shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor Each of DFS and the Seller shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president or a vice president of DFS or of the general partner of the Seller, as the case may be, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of DFS and/or the Depositor Seller, as the case may be, in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of DFS and the Depositor Seller, as the case may be, has complied with all the agreements Agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to DFS's or to the DepositorSeller's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust Trust, the Seller or the Depositor DFS or any material adverse change in the financial position or results or operations of such Trust the Trust, the Seller or the Depositor DFS otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Certificates on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of DFS or the Depositor Seller which, in the Representative's judgment, materially impairs the investment quality of the related SecuritiesCertificates, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities Certificates or to enforce contracts for the sale of such SecuritiesCertificates, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal Federal, Missouri or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of DFS's or the DepositorSeller's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for DFS and the DepositorSeller, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such the matters as the Representative shall reasonably requestset forth in Exhibit B hereto.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trusteethe Seller, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor Date and satisfactory in form and substance to the Representative and to counsel to the Underwriters, to the effect that the information in the Prospectus Supplement under the heading "State and Local Tax Consequences," to the extent it constitutes matters of Missouri law or legal conclusions with respect thereto, has been reviewed by such counsel and is correct in all material respects.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each ServicerDFS and the Seller, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Depositor Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(h) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters, DFS and the Seller and satisfactory in form and substance to the Representative and to counsel to the Underwriters, in substantially the form of Exhibit C hereto.
(hi) The Representative shall have received an officer's certificate dated the related Closing Date of the chairman of the board, the president, an executive vice president or the treasurer of the Trustee in which such officer shall state that, to the best of his/her knowledge after reasonable investigation, the representations and warranties of the Trustee contained in any Agreement are true and correct in all material respects, and that the Trustee has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied under each related Agreement at or prior to such Closing Date.
(j) The Trustee shall have furnished to the Representative a certificate of the Trustee, signed by one or more duly authorized officers of the Trustee, dated the related Closing Date, as to the due acceptance of the Agreements by the Trustee and the due execution and delivery of the Certificates of such Series by the Trustee thereunder and such other matters as the Representative shall reasonably request.
(k) Counsel to DFS and the Depositor Seller shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities Certificates of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(il) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(jm) The Representative shall have received a copy of (i) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables by DFS to the Seller, identifying such Receivables as collateral and naming DFS as debtor and the Seller as the secured party and (ii) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables by the Seller to the Trust pursuant to the Agreements, identifying such Receivables as collateral and naming the Seller as debtor and the Trust as the secured party.
(n) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor Seller to authorize the offering and sale of the Securities Certificates of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and DFS and/or the Depositor Seller shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(ko) The Securities Certificates of the related Series shall have received the ratings specified in the related Terms Agreement.
(lp) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor Seller relating to any previously issued asset-backed securities of the Depositor Trust by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related SecuritiesCertificates) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor Seller at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Deutsche Floorplan Receivables L P)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche LLP a letter, New York time, on the day following dated the date hereof, confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or North Carolina authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of counsel to the Servicer addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special tax counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Basic Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Material Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust for federal income tax purposes, pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code"), as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Xxxxxxxx LLP, special counsel for BofA, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for the Trustee, in each case addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(j) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Hunton & Xxxxxxxx LLP, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(m) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(n) At the Closing Date, the Underwriters shall have received from Hunton & Xxxxxxxx LLP, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance satisfactory to the Underwriters.
(o) On or before the Closing Date, the Underwriters shall have received from the Company (i) a fully executed Indemnification and Contribution Agreement among the Underwriters, the Company and the Servicer, and (ii) a fully executed Indemnification and Contribution Agreement among the Underwriters, the Company and WMC Mortgage Corp. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Abfc Asset-Backed Certificates Series 2003-Wmc1)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche LLP a letter, New York time, on the day following dated the date hereof, confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or North Carolina authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of counsel to the Servicer addressed to the Underwriters, dated the Closing Date in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Williams, special tax counsel for the Company, addressed to the Underwxxxxxx, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Basic Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Material Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust, pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code") for federal income tax purposes as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of Hunton & Williams, special counsel for the Company, addressed to the Underwritexx, xxxxd the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel for BofA, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for each of the Trustee and the Securities Administrator, in each case addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(j) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Hunton & Williams, counsel for the Underwriters, is material and is required to xx xxxxed therein or is necessary to make the statements therein not misleading.
(m) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(n) At the Closing Date, the Underwriters shall have received from Hunton & Williams, counsel for the Underwriters, a letter with respect to the Fxxxx Xxxspectus, in form and substance satisfactory to the Underwriters. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is Subject Notes on the Closing Date are subject to the accuracy of the representations and warranties on the part of GECC and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC and the Depositor of its their respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, any Corrected Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement, as amended and supplemented supplemented, as of such the Closing Date Date, the Time of Sale Information, as of the Time of Sale, any Corrected Prospectus as of the Updated Time of Sale, or the Prospectus, as amended and supplemented, as of its date and as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Depositor, or any material adverse change in the financial position or results or operations of such Trust or the Company, the Depositor or GECC otherwise than as set forth or contemplated in the Preliminary Prospectus, the Prospectus and or any Corrected Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Subject Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Subject Notes on the terms and in the manner contemplated in the related Terms Agreement and Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution Representative) for GECC and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with an opinion, dated the passage of time or Closing Date, addressed to the giving of notice or bothUnderwriters and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters, would constitute such defaultrelating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, an opiniona signed negative assurance letter, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters.
(h) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received (i) a letter, dated March 7, 2012, relating to the related Closing Date Preliminary Prospectus, (ii) a letter, dated March 14, 2012, relating to the Prospectus, and (iii) if applicable, a letter dated as of the date of the Corrected Prospectus, relating to the Corrected Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative Underwriters and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series Notes shall have received the ratings specified in the related Terms Agreementfinal Ratings FWP (as defined below).
(l) On or prior The Representative shall have received from Bxxxxxx MxXxxxxxx LLP, counsel to the related Underwriters, a signed negative assurance letter, dated the Closing Date, there has been no downgradingaddressed to the Underwriters and satisfactory in form and substance to the Underwriters, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GE Equipment Transportation LLC, Series 2012-1)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is Subject Notes on the Closing Date are subject to the accuracy of the representations and warranties on the part of GECC and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC and the Depositor of its their respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, any Corrected Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement, as amended and supplemented supplemented, as of such the Closing Date Date, the Time of Sale Information, as of the Time of Sale, any Corrected Prospectus as of the Updated Time of Sale, or the Prospectus, as amended and supplemented, as of its date and as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor or GECC , or any material adverse change in the financial position or results or operations of such Trust the Company, the Depositor, or the Depositor GECC otherwise than as set forth or contemplated in the Preliminary Prospectus, the Prospectus and or any Corrected Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Subject Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Subject Notes on the terms and in the manner contemplated in the related Terms Agreement and Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution and delivery of a Terms Agreement, there shall not have occurred (iRepresentative) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisisfor GECC, the effect of which is such as to make itTitling Trust Collateral Agent, in GE Title, the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of Titling Trust and the Depositor's obligations under any related Agreement or which, with an opinion, dated the passage of time or Closing Date, addressed to the giving of notice or bothUnderwriters and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters, would constitute such defaultrelating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, an opiniona signed negative assurance letter, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC, the Titling Trust Collateral Agent, GE Title, the Titling Trust and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters.
(h) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the UTI Trustee, the Administrative Trustee, and the Delaware Trustee, an opinion, dated the Closing Date, addressed to the Underwriters, GECC and the Depositor and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters.
(i) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(ij) The Representative shall have received (i) a letter, dated October 17, 2013, relating to the related Closing Date Preliminary Prospectus, (ii) a letter, dated October 23, 2013, relating to the Prospectus, and (iii) if applicable, a letter dated as of the date of the Corrected Prospectus, relating to the Corrected Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative Underwriters and counsel to the Underwriters.
(jk) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(kl) The Securities of the related Series Notes shall have received the ratings specified in the related Terms Agreementfinal Ratings FWP (as defined below).
(lm) On or prior The Representative shall have received from Bxxxxxx MxXxxxxxx LLP, counsel to the related Underwriters, a signed negative assurance letter, dated the Closing Date, there has been no downgradingaddressed to the Underwriters and satisfactory in form and substance to the Underwriters, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GE Equipment Transportation LLC, Series 2013-2)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series is subject to the accuracy of the representations and warranties on the part of CDF and the Depositor Seller herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers of CDF and the Depositor Seller made pursuant to the provisions hereof and thereof, to the performance by each of CDF and the Depositor Seller of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of CDF or the DepositorSeller, shall be contemplated by the Commission. If the Depositor Seller has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor Seller shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor Each of CDF and the Seller shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president or a vice president of CDF or a manager of the Seller, as the case may be, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of CDF and/or the Depositor Seller, as the case may be, in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of CDF and the Depositor Seller, as the case may be, has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to CDF's or to the DepositorSeller's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust Trust, the Seller or the Depositor CDF or any material adverse change in the financial position or results or operations of such Trust Trust, the Seller or the Depositor CDF otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of CDF or the Depositor Seller which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal Federal, Missouri or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of CDF's or the DepositorSeller's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be reasonably satisfactory to the Representative) for CDF and the DepositorSeller, an opinion, dated the related Closing Date, addressed to the Underwriters and reasonably satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trusteethe Seller, an opinion, dated the related Closing Date and satisfactory in form and substance to the Representative and to counsel to the Underwriters, to the effect that the information in the Prospectus and Prospectus Supplement under the heading "State and Local Tax Consequences," to the extent it constitutes matters of Missouri law or legal conclusions with respect thereto, has been reviewed by such counsel and is correct in all material respects.
(g) The Representative shall have received from counsel (who shall be reasonably satisfactory to the Representative) for CDF and the Seller, an opinion, dated the related Closing Date, addressed to the Underwriters and reasonably satisfactory in form and substance to the Depositor Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(h) The Representative shall have received from counsel (who shall be reasonably satisfactory to the Representative) for the Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters, CDF and the Seller and reasonably satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(gi) The Representative shall have received from counsel (who an officer's certificate dated the related Closing Date of the chairman of the board, the president, an executive vice president or the treasurer of the Trustee in which such officer shall be satisfactory state that, to the Representativebest of his/her knowledge after reasonable investigation, the representations and warranties of the Trustee contained in the related Agreement are true and correct in all material respects, and that such Trustee has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied under the related Agreement at or prior to such Closing Date.
(j) for each ServicerThe Trustee shall have furnished to the Representative a certificate of the Trustee, an opinionsigned by one or more duly authorized officers of the Trustee, dated the related Closing Date, addressed as to the Underwriters due acceptance of the related Agreement by the Trustee and the Depositor due execution and satisfactory in form delivery of the Securities of such Series by the Trustee thereunder and substance to such other matters as the Representative and to counsel to the Underwritersshall reasonably request.
(hk) Counsel to CDF and the Depositor Seller shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(il) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(jm) The Representative shall have received a copy of (i) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables to CDF and to the Seller and (ii) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables by the Seller to the Trustee pursuant to the related Agreement, identifying such Receivables as collateral and naming the Seller as debtor and the Trust as the secured party.
(n) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor Seller to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and CDF and/or the Depositor Seller shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(ko) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(lp) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor Seller relating to any previously issued asset-backed securities of the Depositor Trust by any "nationally recognized statistical rating organization" (as such term terms is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor Seller at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Distribution Financial Services Floorplan Master Trust)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series Offered Notes is subject to the accuracy of the representations and warranties on the part of GECC and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC and the Depositor of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement or the Prospectus, each as amended and supplemented as of such Closing Date or the Preliminary Prospectus, as of the Time of Sale, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Depositor, or any material adverse change in the financial position or results or operations of such Trust or the Company, the Depositor or GECC otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Offered Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Offered Notes on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, relating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, a signed negative assurance letter, dated the Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received (i) a letter, dated August 26, 2009, relating to the related Closing Date Preliminary Prospectus and (ii) a letter, dated September 2, 2009, relating to the Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities Class A Notes shall have been rated no less than “P-1” by Xxxxx’x Investors Services, Inc. (“Moody’s”) and “F1+” by Fitch, Inc. (“Fitch”) and each of the related Series Class A-2 Notes, Class A-3 Notes and Class A-4 Notes shall have received been rated no less than “Aaa” by Moody’s and “AAA” by Fitch, and in each case, such ratings shall not have been rescinded, and no public announcement shall have been made by the ratings specified in respective rating agencies that the related Terms Agreementrating of the Notes have been placed under review.
(l) On or prior to the date that the Prospectus is filed with the Commission, each Underwriter shall have received evidence reasonably satisfactory to them that GECC and the Company have (i) executed a Certification as to TALF eligibility, in the form most recently prescribed by the FRBNY under the TALF prior to such date (the “TALF Certification”) and (ii) included such executed TALF Certification in the final Prospectus to be filed with the Commission.
(m) Each Underwriter shall have received evidence reasonably satisfactory to it that GECC and any other applicable entity have executed an Indemnity Undertaking, in the form most recently prescribed by the FRBNY under the TALF prior to such date (the “Indemnity Undertaking”), and have delivered such Indemnity Undertaking, together with the related TALF Certification, to the FRBNY at the time and in the manner prescribed by the FRBNY, with a copy to each Underwriter.
(n) Each Underwriter shall have received (i) an executed copy of an Auditor Attestation prepared by KPMG LLP, in the form most recently prescribed by the FRBNY under the TALF prior to such date (the “Auditor Attestation”) and (ii) evidence reasonably satisfactory to it that such Auditor Attestation has been delivered to the FRBNY at the time and in the manner prescribed by the FRBNY.
(o) Each Underwriter shall have received a reliance letter, dated as of the Closing Date and addressed to each Underwriter, of Xxxxx Xxxxx LLP, special counsel to the Company, satisfactory in form and substance to each Underwriter and its counsel, to the effect that such Underwriter, in its capacity as a TALF Agent, and subject to the limitations in Section 8 hereof, will be entitled to rely on the negative assurances letter described in Section 6(e) hereof, or such negative assurances letter will provide for such reliance.
(p) On the Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or the Depositor and GECC shall have taken all actions required by the FRBNY for the Offered Notes to be “eligible collateral” under the TALF and (ii) any review or possible changes the Offered Notes shall be “eligible collateral” under the TALF.
(q) The Representative shall have received from Xxxxxxx XxXxxxxxx LLP, counsel to the Underwriters, a signed negative assurance letter, dated the Closing Date, addressed to the Underwriters and satisfactory in rating form and substance to the direction of which has not been indicatedRepresentative, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is Subject Notes on the Closing Date are subject to the accuracy of the representations and warranties on the part of GECC and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC and the Depositor of its their respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, any Corrected Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement, as amended and supplemented supplemented, as of such the Closing Date Date, the Time of Sale Information, as of the Time of Sale, any Corrected Prospectus as of the Updated Time of Sale, or the Prospectus, as amended and supplemented, as of its date and as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor or GECC , or any material adverse change in the financial position or results or operations of such Trust the Company, the Depositor, or the Depositor GECC otherwise than as set forth or contemplated in the Preliminary Prospectus, the Prospectus and or any Corrected Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Subject Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Subject Notes on the terms and in the manner contemplated in the related Terms Agreement and Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution and delivery of a Terms Agreement, there shall not have occurred (iRepresentative) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisisfor GECC, the effect of which is such as to make itTitling Trust Collateral Agent, in GE Title, the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of Titling Trust and the Depositor's obligations under any related Agreement or which, with an opinion, dated the passage of time or Closing Date, addressed to the giving of notice or bothUnderwriters and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters, would constitute such defaultrelating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, an opiniona signed negative assurance letter, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC, the Titling Trust Collateral Agent, GE Title, the Titling Trust and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters.
(h) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the UTI Trustee, the Administrative Trustee, and the Delaware Trustee, an opinion, dated the Closing Date, addressed to the Underwriters, GECC and the Depositor and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters.
(i) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(ij) The Representative shall have received (i) a letter, dated March 6, 2013, relating to the related Closing Date Preliminary Prospectus, (ii) a letter, dated March 12, 2013, relating to the Prospectus, and (iii) if applicable, a letter dated as of the date of the Corrected Prospectus, relating to the Corrected Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative Underwriters and counsel to the Underwriters.
(jk) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(kl) The Securities of the related Series Notes shall have received the ratings specified in the related Terms Agreementfinal Ratings FWP (as defined below).
(lm) On or prior The Representative shall have received from Bxxxxxx MxXxxxxxx LLP, counsel to the related Underwriters, a signed negative assurance letter, dated the Closing Date, there has been no downgradingaddressed to the Underwriters and satisfactory in form and substance to the Underwriters, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GE Equipment Transportation LLC, Series 2013-1)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche, New York time, on the day following a letter or letters dated the date hereof confirming that they are independent public accountants within the meaning of this Underwriting Agreement the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters, relating to, among other things, the information in the Disclosure Package (including any static pool information for 2006 or such later date as contained therein), the Preliminary Prospectus, if any, and the Final Prospectus.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since At or after the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms AgreementPricing Date, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change downgrading in the financial markets in rating of the United States securities of the Company by any “nationally recognized statistical rating organization” (as such term is defined for purposes of Rule 436(g) under the Act), or any outbreak public announcement that any such organization has under surveillance or review its rating of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment any securities of the RepresentativeCompany (other than an announcement with positive implications of a possible upgrading, impracticable or inadvisable to market such Securities or to enforce contracts for the sale and no implication of a possible downgrading, of such Securities, rating); (iii) the any suspension or limitation of trading in securities generally by either the American Stock Exchange or on the New York Stock Exchange, or the establishment any setting of minimum or maximum prices or ranges of prices, by either of for trading on such exchanges or by order of the Commission or any other governmental authority, or exchange; (iv) any banking moratorium declared by federal or federal, New York authorities or California authorities; or (ivv) any event that would constitute a default under such Terms Agreement outbreak or this Underwriting Agreement escalation of major hostilities in which the United States is involved, any declaration of war by Congress or default any other substantial national or international calamity or emergency if, in the performance reasonable judgment of the Depositor's obligations under Underwriters, the effects of any related Agreement such outbreak, escalation, declaration, calamity or whichemergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities on the terms and in the manner contemplated in the Prospectus.
(d) The Underwriters shall have received a favorable opinion of Hunton & Wxxxxxxx LLP, special counsel to the Servicer, addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the passage of time or the giving of notice or both, would constitute such defaultUnderwriters may require.
(e) The Representative Underwriters shall have received from a favorable opinion of Hunton & Wxxxxxxx LLP, special tax counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing DateCompany, addressed to the Underwriters Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Representative Underwriters, generally to the effect that (i) the information in the Disclosure Package and the Base Prospectus under “Federal Income Tax Consequences” and in the Final Prospectus under “Federal Income Tax Consequences,” insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs as of the Closing Date.
(f) The Underwriters shall have received a favorable opinion of Hunton & Wxxxxxxx LLP, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Wxxxxxxx LLP, special counsel for Fremont, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Company shall have furnished to the Underwriters a letter, dated the Closing Date, of Hunton & Wxxxxxxx LLP, special counsel to the Company stating that nothing has come to its attention that would lead such counsel to believe that (1) the Disclosure Package, as of its respective date and on the related Pricing Date, or (2) the Final Prospectus, as of its respective date and the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to financial, statistical or accounting information (including any notes and schedules relating thereto) contained or incorporated.
(i) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(j) The Underwriters shall have received a favorable opinion of counsel to Wxxxx Fargo, as master servicer and trust administrator, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Representative shall reasonably requestUnderwriters may require.
(fk) The Representative Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(l) The Underwriters shall have received from Hunton & Wxxxxxxx LLP and any other counsel (who shall be satisfactory to the Representative) for each TrusteeCompany, an opinion, dated the related Closing Date, reliance letters addressed to the Underwriters and dated the Depositor Closing Date, with respect to each opinion delivered by such counsel to the Rating Agencies.
(m) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been assigned the ratings set forth on Schedule I hereto.
(n) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(o) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Txxxxxx Xxxxxxxx & Wood LLP, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(p) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(q) At the Closing Date, the Underwriters shall have received from Txxxxxx Xxxxxxxx & Wxxx LLP, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance to the Representative and to counsel satisfactory to the Underwriters.
(gr) The Representative Underwriters shall have received from counsel (who shall be satisfactory to the Representative) for each Servicertheir counsel, an opinionThacher, dated the related Closing DatePxxxxxxx & Wxxx LLP, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed Date, stating that nothing has come to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and its attention that would lead such counsel to believe that (1) the UnderwritersDisclosure Package, as of its respective date and on the related Pricing Date, or (2) the Final Prospectus, as of its respective date and the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to as to financial, statistical or accounting information (including any notes and schedules relating thereto) contained or incorporated.
(js) All documents incident to On or before the AgreementsClosing Date, Terms Agreements the Underwriters shall have received from the Company a fully executed Indemnification and this Underwriting Contribution Agreement among the Underwriters and Fremont.
(t) At the Closing Date, the Swap Agreement shall be reasonably satisfactory have been duly executed and delivered by the requisite parties, in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with and their counsel. The Company will provide or cause to be provided to the Underwriters such other conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall may reasonably request.
(k) The Securities of . All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the related Series shall have received provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act)Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Fremont Home Loan Trust 2006-E)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series Notes is subject to the accuracy of the representations and warranties on the part of GECC and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC and the Depositor of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer and/or persons for whom the signer has management authority of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officerperson's knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC's or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus Registration Statement or the Prospectus, each as amended and supplemented as of such Closing Date or the Preliminary Prospectus, as of the Time of Sale, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Depositor, or any material adverse change in the financial position or results or operations of such Trust or the Company, the Depositor or GECC otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplementas of the date hereof, which in any such case makes the Representative's reasonable judgment materially impairs the investment quality of the Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Notes on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC, GECS and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect relating to such matters as the Representative shall reasonably requestcertain corporate, securities law and security interests matters.
(e) [Reserved].
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received (i) a letter, dated November 21, 2006, relating to the related Closing Date Preliminary Prospectus and (ii) a letter, dated December 5, 2006, relating to the Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities Class A-1 Notes shall have been rated no less than "P-1" by Moody's Investors Services, Inc. ("Moody's"), "A-1+" by Standard & Xxxx'x Ratings Services, a division of The McGraw-Hill Companies, Inc. ("S&P") and "F1+" by Fitch, Inc. ("Fitcx"), xxxx xf the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes shall have each been rated no less than "Aaa" by Moody's and "AAA" by S&P and Fitch, the Class B Notes shall have been rated no less than "A1" by Moody's and "A" by S&P and Fitch and the Class C Notes shall have been rated no less than "Baa3" by Moody's and "BBB" by S&P and Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective rating agencies that the rating of the related Series shall Notes have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act)placed under review. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GE Equipment Midticket LLC, Series 2006-1)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche, New York time, on the day following a letter dated the date hereof confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change downgrading in the financial markets in rating of the United States securities of the Company by any “nationally recognized statistical rating organization” (as such term is defined for purposes of Rule 436(g) under the Act), or any outbreak public announcement that any such organization has under surveillance or review its rating of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment any securities of the RepresentativeCompany (other than an announcement with positive implications of a possible upgrading, impracticable or inadvisable to market such Securities or to enforce contracts for the sale and no implication of a possible downgrading, of such Securities, rating); (iii) the any suspension or limitation of trading in securities generally by either the American Stock Exchange or on the New York Stock Exchange, or the establishment any setting of minimum or maximum prices or ranges of prices, by either of for trading on such exchanges or by order of the Commission or any other governmental authority, or exchange; (iv) any banking moratorium declared by federal or federal, New York authorities or California authorities; or (ivv) any event that would constitute a default under such Terms Agreement outbreak or this Underwriting Agreement escalation of major hostilities in which the United States is involved, any declaration of war by Congress or default any other substantial national or international calamity or emergency if, in the performance reasonable judgment of the Depositor's obligations under Underwriters, the effects of any related Agreement such outbreak, escalation, declaration, calamity or whichemergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of Hunton & Wxxxxxxx LLP, special counsel to the Servicer, addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the passage of time or the giving of notice or both, would constitute such defaultUnderwriters may require.
(e) The Representative Underwriters shall have received from a favorable opinion of Hunton & Wxxxxxxx LLP, special tax counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing DateCompany, addressed to the Underwriters Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Representative Underwriters, generally to the effect that (i) the information in the Base Prospectus under “Federal Income Tax Consequences” and in the Final Prospectus under “Federal Income Tax Consequences,” insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs as of the Closing Date and will continue to qualify as one or more REMICs for so long as the Trust continues to meet the requirements set forth in the Internal Revenue Code of 1986 (the “Code”) and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of Hunton & Wxxxxxxx LLP, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Wxxxxxxx LLP, special counsel for Fremont, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a favorable opinion of counsel to the Master Servicer and the Trust Administrator, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Representative shall reasonably requestUnderwriters may require.
(fj) The Representative Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(k) The Underwriters shall have received from Hunton & Wxxxxxxx LLP and any other counsel (who shall be satisfactory to the Representative) for each TrusteeCompany, an opinion, dated the related Closing Date, reliance letters addressed to the Underwriters and dated the Depositor Closing Date, with respect to each opinion delivered by such counsel to the Rating Agencies.
(l) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(m) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(n) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(o) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(p) At the Closing Date, the Underwriters shall have received from Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance to the Representative and to counsel satisfactory to the Underwriters.
(gq) The Representative On or before the Closing Date, the Underwriters shall have received from counsel (who shall the Company a fully executed Indemnification and Contribution Agreement among the Underwriters and Fremont. The Company will provide or cause to be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed provided to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts such conformed copies of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall may reasonably request.
(k) The Securities of . All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the related Series shall have received provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act)Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Fremont Mortgage Securities Corp)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche, New York time, on the day following a letter or letters dated the date hereof confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters, relating to, among other things, the information in the Disclosure Package, the Preliminary Prospectus, if any, and the Final Prospectus.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change downgrading in the financial markets in rating of the United States securities of the Company by any “nationally recognized statistical rating organization” (as such term is defined for purposes of Rule 436(g) under the Act), or any outbreak public announcement that any such organization has under surveillance or review its rating of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment any securities of the RepresentativeCompany (other than an announcement with positive implications of a possible upgrading, impracticable or inadvisable to market such Securities or to enforce contracts for the sale and no implication of a possible downgrading, of such Securities, rating); (iii) the any suspension or limitation of trading in securities generally by either the American Stock Exchange or on the New York Stock Exchange, or the establishment any setting of minimum or maximum prices or ranges of prices, by either of for trading on such exchanges or by order of the Commission or any other governmental authority, or exchange; (iv) any banking moratorium declared by federal or federal, New York authorities or California authorities; or (ivv) any event that would constitute a default under such Terms Agreement outbreak or this Underwriting Agreement escalation of major hostilities in which the United States is involved, any declaration of war by Congress or default any other substantial national or international calamity or emergency if, in the performance reasonable judgment of the Depositor's obligations under Underwriters, the effects of any related Agreement such outbreak, escalation, declaration, calamity or whichemergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of Hunton & Wxxxxxxx LLP, special counsel to the Servicer, addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the passage of time or the giving of notice or both, would constitute such defaultUnderwriters may require.
(e) The Representative Underwriters shall have received from a favorable opinion of Hunton & Wxxxxxxx LLP, special tax counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing DateCompany, addressed to the Underwriters Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Representative Underwriters, generally to the effect that (i) the information in the Base Prospectus under “Federal Income Tax Consequences” and in the Final Prospectus under “Federal Income Tax Consequences,” insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs as of the Closing Date.
(f) The Underwriters shall have received a favorable opinion of Hunton & Wxxxxxxx LLP, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Wxxxxxxx LLP, special counsel for Fremont, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Company shall have furnished to the Underwriters a letter, dated the Closing Date, of Hunton & Wxxxxxxx LLP, special counsel to the Company stating that nothing has come to its attention that would lead such counsel to believe that the Disclosure Package containing substantially similar information, as of its respective date and on the Pricing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to financial, statistical or accounting information (including any notes and schedules relating thereto) contained or incorporated.
(i) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(j) The Underwriters shall have received a favorable opinion of counsel to Wxxxx Fargo, as master servicer and trust administrator, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Representative shall reasonably requestUnderwriters may require.
(fk) The Representative Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(l) The Underwriters shall have received from Hunton & Wxxxxxxx LLP and any other counsel (who shall be satisfactory to the Representative) for each TrusteeCompany, an opinion, dated the related Closing Date, reliance letters addressed to the Underwriters and dated the Depositor Closing Date, with respect to each opinion delivered by such counsel to the Rating Agencies.
(m) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(n) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(o) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Txxxxxx Xxxxxxxx & Wood LLP, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(p) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(q) At the Closing Date, the Underwriters shall have received from Txxxxxx Xxxxxxxx & Wxxx LLP, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance to the Representative and to counsel satisfactory to the Underwriters.
(gr) The Representative Underwriters shall have received from counsel (who shall be satisfactory to the Representative) for each Servicertheir counsel, an opinionThacher, dated the related Closing DatePxxxxxxx & Wxxx LLP, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed Date, stating that nothing has come to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and its attention that would lead such counsel to believe that the UnderwritersDisclosure Package containing substantially similar information, as of its date and on the Pricing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to as to financial, statistical or accounting information (including any notes and schedules relating thereto) contained or incorporated.
(js) All documents incident On or before the Closing Date, the Underwriters shall have received from the Company a fully executed Indemnification and Contribution Agreement among the Underwriters and Fremont. The Company will provide or cause to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel provided to the Underwriters with such other conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall may reasonably request.
(k) The Securities of . All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the related Series shall have received provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act)Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Fremont Mortgage Securities Corp)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from (i) a letter, New York time, on the day following dated the date hereof, confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters and (ii) a letter dated the Closing Date, updating the letters referred to in clause (i) above, in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or North Carolina authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of , counsel to the Servicer and the Seller addressed to the Underwriters, dated the Closing Date in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of [Cadwalader, Xxxxxxxxxx & Xxxx], special tax counsel for the Company, addressed to the Underwriters and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Basic Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust, pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code") for federal income tax purposes as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of [Cadwalader, Xxxxxxxxxx & Xxxx], special counsel for the Company, addressed to the Underwriters and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for the Custodian, addressed to the Underwriters and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(j) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of [Cadwalader, Xxxxxxxxxx & Xxxx], counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(m) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(n) At the Closing Date, the Underwriters shall have received from [Cadwalader, Xxxxxxxxxx & Xxxx], counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance satisfactory to the Underwriters. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Wachovia Asset Securitization Inc)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Offered Securities of a Series is are subject to the accuracy of the representations and warranties on the part of the Depositor herein Transferor and in the related Terms Agreement as of the respective dates thereof and the related Closing DateMetris, to the accuracy of the statements of officers of the Depositor Transferor and Metris made pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Transferor of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as Prospectus and any supplements thereto shall have been consented to by filed (if required) with the Representative; Commission in accordance with the General Rules and Regulations under the Act and Section 1 hereof, and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorTransferor or Metris, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and Commissioner or by any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, authority administering any state securities or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulationsblue sky law.
(b) The Depositor Each of the Transferor, Metris and Direct Merchants Bank shall have delivered on or before the related Closing Date to the Representative a certificatecertificate as to itself only, dated as of such the Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Designated Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations (x) each representation and warranties warranty of the Depositor Transferor and Metris, as applicable, in this Underwriting Agreement and the related Terms Agreement are is true and correct in all material respects at to the same extent as if made on and as of the Closing Date (except that, to the extent any such representation or warranty expressly relates to an earlier date, such representation or warranty was true and correct in all material respects on and as of such Closing Date with earlier date) and (y) each representation and warranty of the Transferor, Metris and Direct Merchants Bank, as applicable, in each Designated Agreement is true and correct in all material respects to the same effect extent as if made on and as of the Closing Date (except that, to the extent any such Closing Date;representation or warranty expressly relates to an earlier date, such representation or warranty was true and correct in all material respects on and as of such earlier date)
(ii) each of the Depositor Transferor and Metris, as applicable, has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at under this Agreement on or prior to such the Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or instituted or, to the DepositorTransferor's or Metris's knowledge, threatened by the Commission as of such the Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any an untrue statement of a material fact or omits to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus SupplementProspectus, there shall not have occurred any material adverse change change, or any development involving a prospective material adverse change change, in or affecting particularly the business or assets of the related Trust Trust, the Transferor, Metris or the Depositor Direct Merchants Bank or any material adverse change in the financial position or results or of operations of such Trust the Trust, the Transferor, Metris or the Depositor Direct Merchants Bank otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's good faith judgment to proceed with the public offering or the delivery of the related Offered Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplementas amended or supplemented.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets for asset backed securities in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable crisis or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iiiii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, prices by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities authorities, the effect of which with respect to clause (i) or (ivii) any event that would constitute a default under is such Terms Agreement or this Underwriting Agreement or default as to make it, in the performance good faith judgment of the Depositor's obligations under any related Agreement Representative, impracticable to market the Offered Securities or which, with to enforce contracts for the passage sale of time or the giving of notice or both, would constitute such defaultOffered Securities.
(e) The Representative shall have received from counsel received:
(who shall be satisfactory to i) The favorable opinion of the Representative) for the Depositor, an opinionGeneral Counsel of Metris, dated the related Closing Date, Date and addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the UnderwritersRepresentative, with respect to such matters as the Representative shall reasonably requesteffect that:
(A) Metris is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(fB) The Representative shall Transferor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and is duly qualified to transact business and is in good standing in each state in which the conduct of its business requires such qualification except where the failure to so qualify does not have received from counsel (who shall be satisfactory to a material adverse effect on the Representative) for each Trustee, an opinion, dated financial condition or business of the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the UnderwritersTransferor.
(gC) The Representative shall have received from counsel (who shall be satisfactory Direct Merchants Bank is a national banking association formed under the laws of the United States of America and is authorized to conduct the Representative) for each Servicerbusiness of a special purpose credit card bank, an opinionas described in the Prospectus, dated and had at all relevant times and now has the related Closing Datepower, addressed authority and legal right to acquire, own and service the Underwriters Accounts and the Depositor and satisfactory in form and substance to the Representative and to counsel to the UnderwritersReceivables.
(hD) Counsel Each Designated Agreement and the Transfer and Administration Agreement to which Metris, Direct Merchants Bank or the Depositor shall have furnished to Transferor is a party and this Agreement has been duly and validly authorized, executed and delivered by each of Metris, Direct Merchants Bank and the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesTransferor, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Dateas applicable.
(iE) The Representative shall have received a letter, dated sale of the related Closing Date Investor Securities and addressed the direction by the Transferor to the UnderwritersTrustee to execute, from certified public accountants (who shall be satisfactory to authenticate and deliver the Representative), substantially in the form approved Investor Securities have been duly authorized by the Representative Transferor. The Investor Securities have been duly and counsel to validly authorized and executed by the UnderwritersTransferor.
(jF) All documents incident The execution and delivery of any Designated Agreement or of this Agreement and the execution and delivery to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale Trustee of the Securities Investor Securities, the performance of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; transactions contemplated by this Agreement or any Designated Agreement and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities fulfillment of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of terms thereof will not (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series Notes is subject to the accuracy of the representations and warranties on the part of GECC and the Depositor Seller herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC, GECC Tennessee and the Depositor Seller made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC, GECC Tennessee and the Depositor Seller of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the DepositorSeller, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor Each of GECC, GECC Tennessee and the Seller shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC, GECC Tennessee or the Seller, as applicable, to the effect that the signer and/or persons for whom the signer has management authority of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officerperson's knowledge, the representations and warranties of GECC, GECC Tennessee and/or the Depositor Seller, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC, GECC Tennessee and the Depositor Seller, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC's or to the DepositorSeller's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus Registration Statement or the Prospectus, each as amended and supplemented as of such Closing Date Date, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Seller, or any material adverse change in the financial position or results or operations of such Trust the Company, the Seller, GECC or the Depositor GECC Tennessee otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplementas of the date hereof, which in any such case makes the Representative's reasonable judgment materially impairs the investment quality of the Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Notes on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC, GECC Tennessee, GECS and the DepositorSeller, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect relating to such matters as the Representative shall reasonably requestcertain corporate, securities law and security interests matters.
(e) [Reserved].
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC, GECC Tennessee and the Seller, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor Seller and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to GECC and the Depositor Seller shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by GECC, GECC Tennessee and/or the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor Seller shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities Class A-1 Notes shall have been rated no less than "P1" by Xxxxx'x Investors Services, Inc. ("Moody's"), "A-1+" by Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P") and "F-1+" by Fitch, Inc. ("Fitch"), each of the related Series Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes shall have received each been rated no less than "Aaa" by Moody's and "AAA" by S&P and Fitch, the Class B Notes shall have been rated no less than "A3" by Xxxxx'x and "A" by S&P and Fitch and the Class C Notes shall have been rated investment grade by at least two nationally recognized rating agencies, such ratings specified in shall not have been rescinded, and no public announcement shall have been made by the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in respective rating the direction of which has not been indicated, in agencies that the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act)Notes have been placed under review. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor Seller at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Cef Equipment Holding Ge Commerical Equip Fin Series 2004-1)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series Notes is subject to the accuracy of the representations and warranties on the part of GECC and the Depositor Seller herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC, GECC Tennessee and the Depositor Seller made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC, GECC Tennessee and the Depositor Seller of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the DepositorSeller, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor Each of GECC, GECC Tennessee and the Seller shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC, GECC Tennessee or the Seller, as applicable, to the effect that the signer and/or persons for whom the signer has management authority of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC, GECC Tennessee and/or the Depositor Seller, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC, GECC Tennessee and the Depositor Seller, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's Seller’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement or the Prospectus, each as amended and supplemented as of such Closing Date Date, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus SupplementStatutory Prospectus, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Seller, or any material adverse change in the financial position or results or operations of such Trust the Company, the Seller, GECC or the Depositor GECC Tennessee otherwise than as set forth or contemplated in the Statutory Prospectus and Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Notes on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC, GECC Tennessee, GECS and the DepositorSeller, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect relating to such matters as the Representative shall reasonably requestcertain corporate, securities law and security interests matters.
(e) [Reserved].
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC, GECC Tennessee and the Seller, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor Seller and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to GECC and the Depositor Seller shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by GECC, GECC Tennessee and/or the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor Seller shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities Class A-1 Notes shall have been rated no less than “P1” by Mxxxx’x Investors Services, Inc. (“Moody’s”), “A-1+” by Standard & Poor’s Ratings Services, a division of The MxXxxx-Xxxx Companies, Inc. (“S&P”) and “F-1+” by Fitch, Inc. (“Fitch”), each of the related Series Class A-2 Notes, the Class A-3a Notes, the Class A-3b Notes and the Class A-4 Notes shall have received each been rated no less than “Aaa” by Moody’s and “AAA” by S&P and Fitch, the Class B Notes shall have been rated no less than “A2” by Mxxxx’x and “A” by S&P and Fitch and the Class C Notes shall have been rated investment grade by at least two nationally recognized rating agencies, such ratings specified in shall not have been rescinded, and no public announcement shall have been made by the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in respective rating the direction of which has not been indicated, in agencies that the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act)Notes have been placed under review. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor Seller at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche LLP a letter, New York time, on the day following dated the date hereof, confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or North Carolina authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of counsel to the Servicer addressed to the Underwriters, dated the Closing Date in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx, special tax counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Basic Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Certain Material Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust, pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code") for federal income tax purposes as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel for BAMCC, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for each of the Trustee and the Securities Administrator, in each case addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(j) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Hunton & Xxxxxxxx, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(m) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(n) At the Closing Date, the Underwriters shall have received from Hunton & Xxxxxxxx, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance satisfactory to the Underwriters. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Asset Backed Funding Corp 2002 Wf1 Trust)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche LLP a letter, New York time, on the day following dated the date hereof, confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or North Carolina authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of counsel to the Servicer addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special tax counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Basic Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Material Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust for federal income tax purposes, pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code"), as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Xxxxxxxx LLP, special counsel for BANA, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for the Trustee, in each case addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(j) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Hunton & Xxxxxxxx LLP, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(m) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(n) At the Closing Date, the Underwriters shall have received from Hunton & Xxxxxxxx LLP, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance satisfactory to the Underwriters.
(o) On or before the Closing Date, the Underwriters shall have received from the Company a fully executed Indemnification and Contribution Agreement among the Company, the Underwriters and Centex. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (CHEC Loan Trust 2004-2 Asset-Backed Certificates, Series 2004-2)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m., New York time, on the day following received from Ernst & Young LLP a letter dated the date hereof confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or California authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special counsel to the Servicer, addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special tax counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Base Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Material Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs as of the Closing Date and will continue to qualify as one or more REMICs for so long as the Trust continues to meet the requirements set forth in the Internal Revenue Code of 1986 (the "Code") and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx LLP, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Xxxxxxxx LLP, special counsel for Fremont, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a favorable opinion of counsel to the Master Servicer and the Trust Administrator, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Underwriters may require.
(j) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(k) The Underwriters shall have received from Hunton & Xxxxxxxx LLP and any other counsel to the Company, reliance letters addressed to the Underwriters and dated the Closing Date, with respect to each opinion delivered by such counsel to the Rating Agencies.
(l) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(m) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(n) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(o) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(p) At the Closing Date, the Underwriters shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance satisfactory to the Underwriters.
(q) On or before the Closing Date, the Underwriters shall have received from the Company a fully executed Indemnification and Contribution Agreement among the Underwriters and Fremont. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Fremont Mortgage Securities Corp)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche, New York time, on the day following a letter or letters dated the date hereof confirming that they are independent public accountants within the meaning of this Underwriting Agreement the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters, relating to, among other things, the information in the Disclosure Package (including any static pool information for 2006 or such later date as contained therein), the Preliminary Prospectus, if any, and the Final Prospectus.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since At or after the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms AgreementPricing Date, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "“nationally recognized statistical rating organization" ” (as such term is defined for purposes of Rule 436(g) under the Exchange Act). If , or any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Datepositive implications of a possible upgrading, and no implication of a possible downgrading, of such termination shall be without liability rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or California authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any party such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to any other party except as provided proceed with completion of the sale of and payment for the Securities on the terms and in Section 5 hereofthe manner contemplated in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Fremont Home Loan Trust 2006-D)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche LLP a letter, New York time, on the day following dated the date hereof, confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or North Carolina authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of counsel to the Servicer addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Williams LLP, special tax counsel for the Company, addressed to the Unxxxxxxxxrs, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Basic Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Material Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust for federal income tax purposes, pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code"), as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of Hunton & Williams LLP, special counsel for the Company, addressed to the Underwxxxxxx, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Williams LLP, special counsel for BofA, addressed to the Underwriters, xxxxx xhe Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for the Trustee, in each case addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(j) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Hunton & Williams LLP, counsel for the Underwriters, is material and is requirex xx xx stated therein or is necessary to make the statements therein not misleading.
(m) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(n) At the Closing Date, the Underwriters shall have received from Hunton & Williams LLP, counsel for the Underwriters, a letter with respect to txx Xxxxx Prospectus, in form and substance satisfactory to the Underwriters.
(o) On or before the Closing Date, the Underwriters shall have received from the Company (i) a fully executed Indemnification and Contribution Agreement among the Underwriters, the Company and the Servicer, and (ii) a fully executed Indemnification and Contribution Agreement among the Underwriters, the Company and First Franklin Financial Corporation. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is Offered Notes on the Closing Date are subject to the accuracy of the representations and warranties on the part of GECC and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC and the Depositor of its their respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement or the Prospectus, each as amended and supplemented as of such Closing Date or the Preliminary Prospectus, as of the Time of Sale, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Depositor, or any material adverse change in the financial position or results or operations of such Trust or the Company, the Depositor or GECC otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Offered Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Offered Notes on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution Representative) for GECC and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with an opinion, dated the passage of time or Closing Date, addressed to the giving of notice or bothUnderwriters and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters, would constitute such defaultrelating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, an opiniona signed negative assurance letter, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters.
(h) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received (i) a letter, dated June 14, 2011, relating to the related Closing Date Preliminary Prospectus and (ii) a letter, dated June 22, 2011, relating to the Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative Underwriters and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series Offered Notes shall have received the ratings specified in the related Terms Agreementfinal Ratings FWP (as defined below).
(l) On or prior The Representative shall have received from Xxxxxxx XxXxxxxxx LLP, counsel to the related Underwriters, a signed negative assurance letter, dated the Closing Date, there has been no downgradingaddressed to the Underwriters and satisfactory in form and substance to the Underwriters, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GE Equipment Transportation LLC, Series 2011-1)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series is subject to the accuracy of the representations and warranties on the part of DFS and the Depositor Seller herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers of DFS and the Depositor Seller made pursuant to the provisions hereof and thereof, to the performance by each of DFS and the Depositor Seller of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of DFS or the DepositorSeller, shall be contemplated by the Commission. If the Depositor Seller has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-price- related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor Seller shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor Each of DFS and the Seller shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president or a vice president of DFS or of the general partner of the Seller, as the case may be, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of DFS and/or the Depositor Seller, as the case may be, in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of DFS and the Depositor Seller, as the case may be, has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to DFS's or to the DepositorSeller's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust Trust, the Seller or the Depositor DFS or any material adverse change in the financial position or results or operations of such Trust Trust, the Seller or the Depositor DFS otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of DFS or the Depositor Seller which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal Federal, Missouri or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of DFS's or the DepositorSeller's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be reasonably satisfactory to the Representative) for DFS and the DepositorSeller, an opinion, dated the related Closing Date, addressed to the Underwriters and reasonably satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trusteethe Seller, an opinion, dated the related Closing Date and satisfactory in form and substance to the Representative and to counsel to the Underwriters, to the effect that the information in the Prospectus and Prospectus Supplement under the heading "State and Local Tax Consequences," to the extent it constitutes matters of Missouri law or legal conclusions with respect thereto, has been reviewed by such counsel and is correct in all material respects.
(g) The Representative shall have received from counsel (who shall be reasonably satisfactory to the Representative) for DFS and the Seller, an opinion, dated the related Closing Date, addressed to the Underwriters and reasonably satisfactory in form and substance to the Depositor Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(h) The Representative shall have received from counsel (who shall be reasonably satisfactory to the Representative) for the Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters, DFS and the Seller and reasonably satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(gi) The Representative shall have received from counsel (who an officer's certificate dated the related Closing Date of the chairman of the board, the president, an executive vice president or the treasurer of the Trustee in which such officer shall be satisfactory state that, to the Representativebest of his/her knowledge after reasonable investigation, the representations and warranties of the Trustee contained in the related Agreement are true and correct in all material respects, and that such Trustee has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied under the related Agreement at or prior to such Closing Date.
(j) for each ServicerThe Trustee shall have furnished to the Representative a certificate of the Trustee, an opinionsigned by one or more duly authorized officers of the Trustee, dated the related Closing Date, addressed as to the Underwriters due acceptance of the related Agreement by the Trustee and the Depositor due execution and satisfactory in form delivery of the Securities of such Series by the Trustee thereunder and substance to such other matters as the Representative and to counsel to the Underwritersshall reasonably request.
(hk) Counsel to DFS and the Depositor Seller shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(il) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(jm) The Representative shall have received a copy of (i) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables by DFS to the Seller, identifying such Receivables as collateral and naming DFS as debtor and the Seller as the secured party and (ii) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables by the Seller to the Trustee pursuant to the related Agreement, identifying such Receivables as collateral and naming the Seller as debtor and the Trust as the secured party.
(n) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor Seller to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and DFS and/or the Depositor Seller shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(ko) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(lp) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor Seller relating to any previously issued asset-backed securities of the Depositor Trust by any "nationally recognized statistical rating organization" (as such term terms is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor Seller at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Distribution Financial Services Floorplan Master Trust)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series is subject to the accuracy of the representations and warranties on the part of DFS and the Depositor herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers of DFS and the Depositor made pursuant to the provisions hereof and thereof, to the performance by each of DFS and the Depositor of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior Prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of DFS or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A The Prospectus shall have been transmitted to filed with the Commission for filing pursuant to Rule 424(b) of in accordance with the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and RegulationsSection 5(a) hereof.
(b) The Each of DFS and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of DFS and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of DFS and the Depositor Depositor, as the case may be, has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to DFS's or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Trust, the Depositor or DFS or any material adverse change in the financial position or results or operations of such Trust or Trust, the Depositor or DFS otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of DFS, Ganis or the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak or escalation of hostilities hostilities, any declaration of war or national emergency by Congress, or any other substantial national or international calamity emergency, calamity or crisis, the effect of which is such as to make it, in the sole judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange Exchange, NASDAQ National Market or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal Federal, Missouri or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of DFS's or the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for DFS and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such the matters as the Representative shall reasonably requestset forth in Exhibit B hereto.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGanis, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Depositor, an opinion, dated the related Closing Date and satisfactory in form and substance to the Representative and to counsel to the Underwriters, to the effect that the information in the Prospectus and Prospectus Supplement under the heading "State and Local Tax Consequences," to the extent it constitutes matters of Missouri, Illinois, California or New York law or legal conclusions with respect thereto, has been reviewed by such counsel and is correct in all material respects.
(h) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for DFS and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(i) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters, DFS and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters, in substantially the form of Exhibit C hereto.
(hj) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trust, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(k) The Representative shall have received from counsel to the Underwriters, an opinion with respect securities law matters, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative.
(l) The Representative shall have received an officer's certificate dated the related Closing Date of the chairman of the board, the president, an executive vice president or the treasurer of each Trustee in which such officer shall state that, to the best of his/her knowledge after reasonable investigation, the representations and warranties of such Trustee contained in the related Agreement are true and correct in all material respects, and that such Trustee has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied under the related Agreement at or prior to such Closing Date.
(m) Each Trustee shall have furnished to the Representative a certificate of the Trustee, signed by one or more duly authorized officers of such Trustee, dated the related Closing Date, as to the due acceptance of the related Agreement by such Trustee and the due execution and delivery of the Securities of such Series by such Trustee thereunder and such other matters as the Representative shall reasonably request.
(n) Counsel to DFS and the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(io) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(jp) The Representative shall have received a copy of (i) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables by DFS to Ganis and by Ganis to the Depositor, identifying such Receivables as collateral, (ii) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-l appropriately filed with respect to the transfer of the related Receivables by the Depositor to the Owner Trustee pursuant to the related Agreement, identifying such Receivables as collateral and naming the Depositor as debtor and the Trust as the secured party, and (iii) if applicable, a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the grant of the related Receivables by the Trust to the Indenture Trustee pursuant to the related Indenture, identifying such Receivables as collateral and naming the Trust as debtor and the Indenture Trustee as the secured party.
(q) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and arid counsel to the Underwriters; and DFS and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(kr) The Securities of the related Series shall have received the ratings specified in the related Terms AgreementAgreement without any negative outlook.
(ls) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor any Trust by any "nationally recognized statistical rating organization" (as such term terms is defined for purposes of the Exchange Act).
(t) On the Closing Date, each of the Agreements and the Securities shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder. The Agreements and the Securities shall be substantially in the forms heretofore provided to the Representative. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Deutsche Recreational Asset Funding Corp)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is Subject Notes on the Closing Date are subject to the accuracy of the representations and warranties on of GECC, the part of Company and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC, the Company and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC, the Company and the Depositor of its their respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement or the Prospectus, each as amended and supplemented as of such Closing Date or the Preliminary Prospectus, as of the Time of Sale, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Company, the Depositor, the Titling Trust or Collateral Agent, GE Title, the Depositor Titling Trust, or any material adverse change in the financial position or results or operations of such the Company, the Depositor, the Titling Trust Collateral Agent, GE Title, the Titling Trust or the Depositor GECC otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Subject Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Subject Notes on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution and delivery of a Terms Agreement, there shall not have occurred (iRepresentative) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisisfor GECC, the effect of which is such as to make itTitling Trust Collateral Agent, in GE Title, the judgment of Titling Trust, the RepresentativeManaging Member, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of Company and the Depositor's obligations under any related Agreement or which, with an opinion, dated the passage of time or Closing Date, addressed to the giving of notice or bothUnderwriters and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters, would constitute such defaultrelating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, an opiniona signed negative assurance letter, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC, the Titling Trust Collateral Agent, GE Title, the Titling Trust, the Managing Member, the Company and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters.
(h) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the UTI Trustee, the Administrative Trustee, and the Delaware Trustee, an opinion, dated the Closing Date, addressed to the Underwriters, GECC and the Depositor and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters.
(i) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(ij) The Representative shall have received (i) a letter, dated September 11, 2013, relating to the related Closing Date Preliminary Prospectus and (ii) a letter, dated September 17, 2013, relating to the Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative Underwriters and counsel to the Underwriters.
(jk) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(kl) The Securities of the related Series Notes shall have received the ratings specified in the related Terms Agreementfinal Ratings FWP (as defined below).
(lm) On or prior The Representative shall have received from Xxxxxxx XxXxxxxxx LLP, counsel to the related Underwriters, a signed negative assurance letter, dated the Closing Date, there has been no downgradingaddressed to the Underwriters and satisfactory in form and substance to the Underwriters, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor and the Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GE Equipment Midticket LLC, Series 2013-1)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is Subject Notes on the Closing Date are subject to the accuracy of the representations and warranties on of GECC, the part of Company and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC, the Company and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC, the Company and the Depositor of its their respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, any Corrected Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement, as amended and supplemented supplemented, as of such the Closing Date Date, the Time of Sale Information, as of the Time of Sale, any Corrected Prospectus as of the Updated Time of Sale, or the Prospectus, as amended and supplemented, as of its date and as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Company, the Depositor, the Titling Trust Collateral Agent, GE Title, the Titling Trust or the Depositor GECC , or any material adverse change in the financial position or results or operations of such the Company, the Depositor, the Titling Trust Collateral Agent, GE Title, the Titling Trust or the Depositor GECC otherwise than as set forth or contemplated in the Preliminary Prospectus, the Prospectus and or any Corrected Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Subject Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Subject Notes on the terms and in the manner contemplated in the related Terms Agreement and Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution and delivery of a Terms Agreement, there shall not have occurred (iRepresentative) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisisfor GECC, the effect of which is such as to make itTitling Trust Collateral Agent, in GE Title, the judgment of Titling Trust, the RepresentativeManaging Member, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of Company and the Depositor's obligations under any related Agreement or which, with an opinion, dated the passage of time or Closing Date, addressed to the giving of notice or bothUnderwriters and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters, would constitute such defaultrelating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, an opiniona signed negative assurance letter, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC, the Titling Trust Collateral Agent, GE Title, the Titling Trust, the Managing Member, the Company and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters.
(h) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the UTI Trustee, the Administrative Trustee, and the Delaware Trustee, an opinion, dated the Closing Date, addressed to the Underwriters, GECC and the Depositor and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters.
(i) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(ij) The Representative shall have received (i) a letter, dated September 3, 2014, relating to the related Closing Date Preliminary Prospectus (ii) a letter, dated September 9, 2014, relating to the Prospectus and (iii), if applicable, a letter dated as of the date of the Corrected Prospectus, relating to the Corrected Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative Underwriters and counsel to the Underwriters.
(jk) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(kl) The Securities of the related Series Notes shall have received the ratings specified in the related Terms Agreementfinal Ratings FWP (as defined below).
(lm) On or prior The Representative shall have received from Xxxxxxx XxXxxxxxx LLP, counsel to the related Underwriters, a signed negative assurance letter, dated the Closing Date, there has been no downgradingaddressed to the Underwriters and satisfactory in form and substance to the Underwriters, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor and the Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GE Equipment Midticket LLC, Series 2014-1)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series is subject to the accuracy of the representations and warranties on the part of DFS and the Depositor Seller herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers of DFS and the Depositor Seller made pursuant to the provisions hereof and thereof, to the performance by each of DFS and the Depositor Seller of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of DFS or the DepositorSeller, shall be contemplated by the Commission. If the Depositor Seller has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor Seller shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor Each of DFS and the Seller shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president or a vice president of DFS or of the general partner of the Seller, as the case may be, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of DFS and/or the Depositor Seller, as the case may be, in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of DFS and the Depositor Seller, as the case may be, has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to DFS's or to the DepositorSeller's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust Trust, the Seller or the Depositor DFS or any material adverse change in the financial position or results or operations of such Trust Trust, the Seller or the Depositor DFS otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of DFS or the Depositor Seller which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal Federal, Missouri or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of DFS's or the DepositorSeller's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be reasonably satisfactory to the Representative) for DFS and the DepositorSeller, an opinion, dated the related Closing Date, addressed to the Underwriters and reasonably satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trusteethe Seller, an opinion, dated the related Closing Date and satisfactory in form and substance to the Representative and to counsel to the Underwriters, to the effect that the information in the Prospectus and Prospectus Supplement under the heading "State and Local Tax Consequences," to the extent it constitutes matters of Missouri law or legal conclusions with respect thereto, has been reviewed by such counsel and is correct in all material respects.
(g) The Representative shall have received from counsel (who shall be reasonably satisfactory to the Representative) for DFS and the Seller, an opinion, dated the related Closing Date, addressed to the Underwriters and reasonably satisfactory in form and substance to the Depositor Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(h) The Representative shall have received from counsel (who shall be reasonably satisfactory to the Representative) for the Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters, DFS and the Seller and reasonably satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(gi) The Representative shall have received from counsel (who an officer's certificate dated the related Closing Date of the chairman of the board, the president, an executive vice president or the treasurer of the Trustee in which such officer shall be satisfactory state that, to the Representativebest of his/her knowledge after reasonable investigation, the representations and warranties of the Trustee contained in the related Agreement are true and correct in all material respects, and that such Trustee has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied under the related Agreement at or prior to such Closing Date.
(j) for each ServicerThe Trustee shall have furnished to the Representative a certificate of the Trustee, an opinionsigned by one or more duly authorized officers of the Trustee, dated the related Closing Date, addressed as to the Underwriters due acceptance of the related Agreement by the Trustee and the Depositor due execution and satisfactory in form delivery of the Securities of such Series by the Trustee thereunder and substance to such other matters as the Representative and to counsel to the Underwritersshall reasonably request.
(hk) Counsel to DFS and the Depositor Seller shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(il) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(jm) The Representative shall have received a copy of (i) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables by DFS to the Seller, identifying such Receivables as collateral and naming DFS as debtor and the Seller as the secured party and (ii) a file-stamped acknowledgment copy of each UCC-1 financing statement on Form UCC-1 appropriately filed with respect to the transfer of the related Receivables by the Seller to the Trustee pursuant to the related Agreement, identifying such Receivables as collateral and naming the Seller as debtor and the Trust as the secured party.
(n) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor Seller to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and DFS and/or the Depositor Seller shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(ko) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(lp) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor Seller relating to any previously issued asset-backed securities of the Depositor Trust by any "nationally recognized statistical rating organization" (as such term terms is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor Seller at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Deutsche Floorplan Receivables L P)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche LLP a letter, New York time, on the day following dated the date hereof, confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or North Carolina authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of counsel to the Servicer addressed to the Underwriters, dated the Closing Date in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx, special tax counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Basic Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Material Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust, pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code") for federal income tax purposes as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of Hunton & Xxxxxxxx, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel for BAMCC, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for each of the Trustee and the Securities Administrator, in each case addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(j) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Hunton & Xxxxxxxx, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(m) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(n) At the Closing Date, the Underwriters shall have received from Hunton & Xxxxxxxx, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance satisfactory to the Underwriters. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series is subject to the accuracy of the representations and warranties on the part of the Depositor herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof and thereof, to the performance by the Depositor of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's ’s knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's ’s judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's ’s judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's ’s obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "“nationally recognized statistical rating organization" ” (as such term is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Deutsche Mortgage Securities Inc)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is Subject Notes on the Closing Date are subject to the accuracy of the representations and warranties on the part of GECC and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC and the Depositor of its their respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement or the Prospectus, each as amended and supplemented as of such Closing Date or the Preliminary Prospectus, as of the Time of Sale, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Depositor, or any material adverse change in the financial position or results or operations of such Trust or the Company, the Depositor or GECC otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Subject Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Subject Notes on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution Representative) for GECC and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with an opinion, dated the passage of time or Closing Date, addressed to the giving of notice or bothUnderwriters and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters, would constitute such defaultrelating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, an opiniona signed negative assurance letter, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters.
(h) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received (i) a letter, dated September 26, 2012, relating to the related Closing Date Preliminary Prospectus and (ii) a letter, dated September 26, 2012, relating to the Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative Underwriters and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series Notes shall have received the ratings specified in the related Terms Agreementfinal Ratings FWP (as defined below).
(l) On or prior The Representative shall have received from Xxxxxxx XxXxxxxxx LLP, counsel to the related Underwriters, a signed negative assurance letter, dated the Closing Date, there has been no downgradingaddressed to the Underwriters and satisfactory in form and substance to the Underwriters, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GE Equipment Midticket LLC, Series 2012-1)
Conditions Precedent to the Obligations of the Underwriters. The obligation ------------------------------------------------------------- obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from (i) a letter, New York time, on the day following dated the date hereof, confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters and (ii) a letter dated the Closing Date, updating the letters referred to in clause (i) above, in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or North Carolina authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of , counsel to the Servicer and the Seller addressed to the Underwriters, dated the Closing Date in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of [Cadwalader, Wickersham & Taft LLP][Orrick, Herrington & Sutcliffe LLP], special tax xxxxxxx for xxx Compaxx, xxdrxxxxx xx xhe Xxxxxxxxxers and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Basic Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust, pursuant to Section 860D of the Internal Revenue Code of 1986 (the "Code") for federal income tax purposes as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of [Cadwalader, Wickersham & Taft LLP] [Orrick, Herrington & Sutcliffe LLP], spexxxx xxxxsel xxx the Compxxx, addxxxxxx xx the Xxxxxxxxxers and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for the Custodian, addressed to the Underwriters and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Underwriters may require.
(i) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the certificate of formation or limited liability company agreement of the Company, and no such amendment has been authorized.
(j) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of [Cadwalader, Wickersham & Taft LLP] [Orrick, Herrington & Sutcliffe LLP], couxxxx xxx xhe Xxxxrwriters, xx matxxxxx xxx is rexxxxxx xx be stated therein or is necessary to make the statements therein not misleading.
(m) All proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(n) At the Closing Date, the Underwriters shall have received from [Cadwalader, Wickersham & Taft LLP] [Orrick, Herrington & Sutcliffe LLP], couxxxx xxx xhe Uxxxxwriters, x xxttex xxxx xxxpect xx xxx Xxnal Prospectus, in form and substance satisfactory to the Underwriters. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Wachovia Asset Securitization Inc)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series Notes is subject to the accuracy of the representations and warranties on the part of GECC and the Depositor Seller herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC and the Depositor Seller made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC and the Depositor Seller of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the DepositorSeller, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor Each of GECC and the Seller shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Seller, as applicable, to the effect that the signer and/or persons for whom the signer has management authority of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officerperson's knowledge, the representations and warranties of GECC and/or the Depositor Seller, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Seller, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC's or to the DepositorSeller's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Seller, or any material adverse change in the financial position or results or operations of such Trust the Company, the Seller or the Depositor GECC otherwise than as set forth or contemplated in the Prospectus and Prospectus SupplementProspectus, which in any such case makes the Representative's reasonable judgment materially impairs the investment quality of the Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Notes on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution Representative) for GECC, GECS and delivery of a Terms Agreementthe Seller, there shall not have occurred (i) any changean opinion, or any development involving a prospective changedated the Closing Date, addressed to the Underwriters and satisfactory in or affecting particularly form and substance to the businessRepresentative and to counsel to the Underwriters, financial condition or properties of the Depositor whichrelating to certain corporate, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such defaultsecurities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the DepositorDB Swap Counterparty, an opinion, dated the related Closing Date, addressed to the Underwriters Date and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trusteewith respect to the GECS Variable Funding Certificate and the Seller Variable Funding Certificate, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor Date and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each ServicerGECC and the Seller, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Depositor Representative and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(h) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Indenture Trustee (or its agent, as applicable), an opinion, dated the Closing Date, addressed to the Underwriters, GECC and the Seller and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(hi) Counsel to GECC and the Depositor Seller shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(ij) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(jk) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by GECC and/or the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor Seller shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(kl) The Securities Class A-1 Notes shall have been rated no less than "P1" by Xxxxx'x Investors Services, Inc. ("Moody's"), "A-1+" by Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P") and "F-1+" by Fitch, Inc. ("Fitch"), each of the related Series Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes shall have received each been rated no less than "Aaa" by Moody's and "AAA" by S&P and Fitch, and the Class B Notes shall have been rated no less than "A3" by Moody's and "A" by S&P and Fitch, such ratings specified in shall not have been rescinded, and no public announcement shall have been made by the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in respective rating the direction of which has not been indicated, in agencies that the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act)Notes have been placed under review. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor Seller at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series Offered Notes is subject to the accuracy of the representations and warranties on the part of GECC and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC and the Depositor of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer and/or persons for whom the signer has management authority of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officerperson's knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC's or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus Registration Statement or the Prospectus, each as amended and supplemented as of such Closing Date or the Preliminary Prospectus, as of the Time of Sale, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Depositor, or any material adverse change in the financial position or results or operations of such Trust or the Company, the Depositor or GECC otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplementas of the date hereof, which in any such case makes the Representative's reasonable judgment materially impairs the investment quality of the Offered Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Offered Notes on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC, GECS and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect relating to such matters as the Representative shall reasonably requestcertain corporate, securities law and security interests matters.
(e) [Reserved].
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain insolvency and bankruptcy matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Dateand federal income tax matters.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is Subject Notes on the Closing Date are subject to the accuracy of the representations and warranties on the part of GECCI and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECCI and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECCI and the Depositor of its their respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECCI or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECCI and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECCI or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, any Corrected Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECCI and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECCI and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECCI’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement, as amended and supplemented supplemented, as of such the Closing Date Date, the Time of Sale Information, as of the Time of Sale, any Corrected Prospectus as of the Updated Time of Sale, or the Prospectus, as amended and supplemented, as of its date and as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Depositor, or any material adverse change in the financial position or results or operations of such Trust or the Company, the Depositor or GECCI otherwise than as set forth or contemplated in the Preliminary Prospectus, the Prospectus and or any Corrected Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Subject Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Subject Notes on the terms and in the manner contemplated in the related Terms Agreement and Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution Representative) for GECCI and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with an opinion, dated the passage of time or Closing Date, addressed to the giving of notice or bothUnderwriters and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters, would constitute such defaultrelating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECCI and the Depositor, an opiniona signed negative assurance letter, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECCI and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECCI and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters.
(h) Counsel to GECCI and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received (i) a letter, dated [●] [●], 201[●], relating to the related Closing Date Preliminary Prospectus, (ii) a letter, dated [●] [●], 201[●], relating to the Prospectus, and (iii) if applicable, a letter dated as of the date of the Corrected Prospectus, relating to the Corrected Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative Underwriters and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECCI and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series Notes shall have received the ratings specified in the related Terms Agreementfinal Ratings FWP (as defined below).
(l) On or prior The Representative shall have received from Bxxxxxx MxXxxxxxx LLP, counsel to the related Underwriters, a signed negative assurance letter, dated the Closing Date, there has been no downgradingaddressed to the Underwriters and satisfactory in form and substance to the Underwriters, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GECB Equipment Funding, LLC)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is Subject Notes on the Closing Date are subject to the accuracy of the representations and warranties on of GECC, the part of Company and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC, the Company and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC, the Company and the Depositor of its their respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, any Corrected Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement, as amended and supplemented supplemented, as of such the Closing Date Date, the Time of Sale Information, as of the Time of Sale, any Corrected Prospectus as of the Updated Time of Sale, or the Prospectus, as amended and supplemented, as of its date and as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Company, the Depositor, the Titling Trust Collateral Agent, GE Title, the Titling Trust or the Depositor GECC , or any material adverse change in the financial position or results or operations of such the Company, the Depositor, the Titling Trust Collateral Agent, GE Title, the Titling Trust or the Depositor GECC otherwise than as set forth or contemplated in the Preliminary Prospectus, the Prospectus and or any Corrected Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Subject Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Subject Notes on the terms and in the manner contemplated in the related Terms Agreement and Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution and delivery of a Terms Agreement, there shall not have occurred (iRepresentative) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisisfor GECC, the effect of which is such as to make itTitling Trust Collateral Agent, in GE Title, the judgment of Titling Trust, the RepresentativeManaging Member, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of Company and the Depositor's obligations under any related Agreement or which, with an opinion, dated the passage of time or Closing Date, addressed to the giving of notice or bothUnderwriters and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters, would constitute such defaultrelating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, an opiniona signed negative assurance letter, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC, the Titling Trust Collateral Agent, GE Title, the Titling Trust, the Managing Member, the Company and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters.
(h) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the UTI Trustee, the Administrative Trustee, and the Delaware Trustee, an opinion, dated the Closing Date, addressed to the Underwriters, GECC and the Depositor and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters.
(i) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(ij) The Representative shall have received (i) a letter, dated March 4, 2015, relating to the related Closing Date Preliminary Prospectus, (ii) a letter, dated March 4, 2015, relating to the Prospectus, and (iii) if applicable, a letter dated as of the date of the Corrected Prospectus, relating to the Corrected Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative Underwriters and counsel to the Underwriters.
(jk) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(kl) The Securities of the related Series Notes shall have received the ratings specified in the related Terms Agreementfinal Ratings FWP (as defined below).
(lm) On or prior The Representative shall have received from Mxxxxx, Xxxxx & Bxxxxxx LLP, counsel to the related Underwriters, a signed negative assurance letter, dated the Closing Date, there has been no downgradingaddressed to the Underwriters and satisfactory in form and substance to the Underwriters, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor and the Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GE TF Trust)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche, New York time, on the day following a letter or letters dated the date hereof confirming that they are independent public accountants within the meaning of this Underwriting Agreement the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters, relating to, among other things, the information in the Disclosure Package (including any static pool information for 2006 or such later date as contained therein), the Preliminary Prospectus, if any, and the Final Prospectus.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change downgrading in the financial markets in rating of the United States securities of the Company by any “nationally recognized statistical rating organization” (as such term is defined for purposes of Rule 436(g) under the Act), or any outbreak public announcement that any such organization has under surveillance or review its rating of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment any securities of the RepresentativeCompany (other than an announcement with positive implications of a possible upgrading, impracticable or inadvisable to market such Securities or to enforce contracts for the sale and no implication of a possible downgrading, of such Securities, rating); (iii) the any suspension or limitation of trading in securities generally by either the American Stock Exchange or on the New York Stock Exchange, or the establishment any setting of minimum or maximum prices or ranges of prices, by either of for trading on such exchanges or by order of the Commission or any other governmental authority, or exchange; (iv) any banking moratorium declared by federal or federal, New York authorities or California authorities; or (ivv) any event that would constitute a default under such Terms Agreement outbreak or this Underwriting Agreement escalation of major hostilities in which the United States is involved, any declaration of war by Congress or default any other substantial national or international calamity or emergency if, in the performance reasonable judgment of the Depositor's obligations under Underwriters, the effects of any related Agreement such outbreak, escalation, declaration, calamity or whichemergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of Hunton & Wxxxxxxx LLP, special counsel to the Servicer, addressed to the Underwriters, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the passage of time or the giving of notice or both, would constitute such defaultUnderwriters may require.
(e) The Representative Underwriters shall have received from a favorable opinion of Hunton & Wxxxxxxx LLP, special tax counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing DateCompany, addressed to the Underwriters Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Representative Underwriters, generally to the effect that (i) the information in the Disclosure Package and the Base Prospectus under “Federal Income Tax Consequences” and in the Final Prospectus under “Federal Income Tax Consequences,” insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs as of the Closing Date.
(f) The Underwriters shall have received a favorable opinion of Hunton & Wxxxxxxx LLP, special counsel for the Company, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Wxxxxxxx LLP, special counsel for Fremont, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Company shall have furnished to the Underwriters a letter, dated the Closing Date, of Hunton & Wxxxxxxx LLP, special counsel to the Company stating that nothing has come to its attention that would lead such counsel to believe that (1) the Disclosure Package, as of its respective date and on the related Pricing Date, or (2) the Final Prospectus, as of its respective date and the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to financial, statistical or accounting information (including any notes and schedules relating thereto) contained or incorporated.
(i) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(j) The Underwriters shall have received a favorable opinion of counsel to Wxxxx Fargo, as master servicer and trust administrator, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Representative shall reasonably requestUnderwriters may require.
(fk) The Representative Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(l) The Underwriters shall have received from Hunton & Wxxxxxxx LLP and any other counsel (who shall be satisfactory to the Representative) for each TrusteeCompany, an opinion, dated the related Closing Date, reliance letters addressed to the Underwriters and dated the Depositor Closing Date, with respect to each opinion delivered by such counsel to the Rating Agencies.
(m) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been assigned the ratings set forth on Schedule I hereto.
(n) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(o) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Txxxxxx Xxxxxxxx & Wood LLP, counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(p) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(q) At the Closing Date, the Underwriters shall have received from Txxxxxx Xxxxxxxx & Wxxx LLP, counsel for the Underwriters, a letter with respect to the Final Prospectus, in form and substance to the Representative and to counsel satisfactory to the Underwriters.
(gr) The Representative Underwriters shall have received from counsel (who shall be satisfactory to the Representative) for each Servicertheir counsel, an opinionThacher, dated the related Closing DatePxxxxxxx & Wxxx LLP, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed Date, stating that nothing has come to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and its attention that would lead such counsel to believe that (1) the UnderwritersDisclosure Package, as of its respective date and on the related Pricing Date, or (2) the Final Prospectus, as of its respective date and the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to as to financial, statistical or accounting information (including any notes and schedules relating thereto) contained or incorporated.
(js) All documents incident to On or before the AgreementsClosing Date, Terms Agreements the Underwriters shall have received from the Company a fully executed Indemnification and this Underwriting Contribution Agreement among the Underwriters and Fremont.
(t) At the Closing Date, the Swap Agreement shall be reasonably satisfactory have been duly executed and delivered by the requisite parties, in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with and their counsel. The Company will provide or cause to be provided to the Underwriters such other conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall may reasonably request.
(k) The Securities of . All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the related Series shall have received provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act)Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Fremont Home Loan Trust 2006-C)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is Subject Notes on the Closing Date are subject to the accuracy of the representations and warranties on the part of GECC and the Depositor herein and in the related Terms Agreement Related Documents to which they are parties as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers or managers of GECC and the Depositor made pursuant to the provisions hereof and thereofhereof, to the performance by each of GECC and the Depositor of its their respective obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of GECC or the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Each of GECC and the Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its the president, a senior vice president president, vice president, manager, or a vice president other officer or authorized person of GECC or the Depositor, as applicable, to the effect that the signer, and/or persons for whom the signer has management authority, of such certificate has carefully examined the Registration Statement, the Preliminary Prospectus, any Corrected Prospectus, the Prospectus, each related Agreement Related Document and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's person’s knowledge, the representations and warranties of GECC and/or the Depositor Depositor, as the case may be, in this Underwriting Agreement and the related Terms Agreement in each Related Document to which it is a party are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) each of GECC and the Depositor Depositor, as the case may be, has complied with all the agreements Related Documents to which it is a party and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to GECC’s or to the Depositor's ’s knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's ’s attention that would lead such person to believe that the Prospectus Registration Statement, as amended and supplemented supplemented, as of such the Closing Date Date, the Time of Sale Information, as of the Time of Sale, any Corrected Prospectus as of the Updated Time of Sale, or the Prospectus, as amended and supplemented, as of its date and as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or Company, the Depositor Depositor, or any material adverse change in the financial position or results or operations of such Trust or the Company, the Depositor or GECC otherwise than as set forth or contemplated in the Preliminary Prospectus, the Prospectus and or any Corrected Prospectus Supplementas of the date hereof, which in any such case makes the Representative’s reasonable judgment materially impairs the investment quality of the Subject Notes so as to make it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities Subject Notes on the terms and in the manner contemplated in the related Terms Agreement and Preliminary Prospectus, any Corrected Prospectus and Prospectus Supplementthe Prospectus.
(d) Subsequent The Representative shall have received from counsel (who shall be satisfactory to the execution Representative) for GECC and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with an opinion, dated the passage of time or Closing Date, addressed to the giving of notice or bothUnderwriters and satisfactory in form and substance to the Underwriters and to counsel to the Underwriters, would constitute such defaultrelating to certain corporate, securities law and security interests matters.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for GECC and the Depositor, an opiniona signed negative assurance letter, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain matters with respect to such matters as the Representative shall reasonably requestRegistration Statement, the Preliminary Prospectus and the Prospectus.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each TrusteeGECC and the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters, relating to certain insolvency and bankruptcy matters and federal income tax matters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicerthe Indenture Trustee (or its agent, as applicable), an opinion, dated the related Closing Date, addressed to the Underwriters Underwriters, GECC and the Depositor and satisfactory in form and substance to the Representative Underwriters and to counsel to the Underwriters.
(h) Counsel to GECC and the Depositor shall have furnished to the Representative any opinions (if any) supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesNotes, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received (i) a letter, dated October 10, 2012, relating to the related Closing Date Preliminary Prospectus, (ii) a letter, dated October 16, 2012, relating to the Prospectus, and (iii) if applicable, a letter dated as of the date of the Corrected Prospectus, relating to the Corrected Prospectus, each addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative Underwriters and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements Related Documents and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and GECC and/or the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series Notes shall have received the ratings specified in the related Terms Agreementfinal Ratings FWP (as defined below).
(l) On or prior The Representative shall have received from Bxxxxxx MxXxxxxxx LLP, counsel to the related Underwriters, a signed negative assurance letter, dated the Closing Date, there has been no downgradingaddressed to the Underwriters and satisfactory in form and substance to the Underwriters, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Registration Statement, the Exchange Act)Preliminary Prospectus and the Prospectus. If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (GE Equipment Transportation LLC, Series 2012-2)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series is subject to the accuracy of the representations and warranties on the part of the Depositor herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Dateeach Participating Entity herein, to the accuracy of the statements of officers of the Depositor each Participating Entity made pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor each Participating Entity of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representativeeffective; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositorany Participating Entity, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and 1933 Act Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and 1933 Act Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and 1933 Act Regulations.
(b) The Depositor Each Participating Entity shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such the Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Designated Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor such Participating Entity in this Underwriting each Designated Agreement and the related Terms this Agreement are true and correct in all material respects at and as of such the Closing Date with the same effect as if made on such the Closing Date;
(ii) the Depositor such Participating Entity has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such the Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or or, to the Depositor's knowledgeknowledge of such Participating Entity, threatened as of such the Closing Date; and
(iv) nothing has come to such personXxxxxx's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplementas amended or supplemented, there shall not have occurred any material adverse change or any development involving a prospective material adverse change change, in or affecting particularly the business or assets of the related Trust or the Depositor any Participating Entity or any material adverse change in the financial position or results or operations of such the Trust or the Depositor any Participating Entity otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or to inadvisable in the Representative's reasonable judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplementas amended or supplemented.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of any Participating Entity or the Depositor Trust which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such the Securities or to enforce contracts for the sale of such the Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal Federal, Missouri, California or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations of any Participating Entity under any related Designated Agreement to which it is a party or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall may be satisfactory an employee of a Participating Entity) to the Representative) for the DepositorParticipating Entities, an opinionone or more opinions, dated the related Closing Date, Date and addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably requestRepresentative.
(f) The Representative shall have received from special counsel (who shall be satisfactory to for the Representative) for each Trustee, Participating Entities an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor Date and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from special counsel (who shall be satisfactory to the Representative) for each ServicerDepositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Depositor Representative and to counsel to the Underwriters, relating to certain bankruptcy matters and federal income tax matters.
(h) The Representative shall have received from counsel for the Owner Trustee, an opinion, dated the Closing Date and addressed to the Underwriters and each Participating Entity and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(hi) The Representative shall have received an officer's certificate dated the Closing Date of the chairman of the board, the president, an executive vice president or the treasurer of the Owner Trustee in which such officer shall state that, to the best of his/her knowledge after reasonable investigation, the representations and warranties of the Owner Trustee contained in the Trust Agreement are true and correct in all material respects, and that the Owner Trustee has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied under the Trust Agreement at or prior to the Closing Date.]
(j) The Representative shall have received from counsel for the Indenture Trustee, an opinion, dated the Closing Date and addressed to the Underwriters, each Participating Entity and satisfactory in form and substance to the Representative and to counsel to the Underwriters. [(k) The Representative shall have received an officer's certificate dated the Closing Date of the chairman of the board, the president, an executive vice president or the treasurer of the Indenture Trustee in which such officer shall state that, to the best of his/her knowledge after reasonable investigation, the representations and warranties of the Indenture Trustee contained in the Indenture are true and correct in all material respects, and that the Indenture Trustee has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied under the Indenture at or prior to the Closing Date.]
(l) The Representatives shall have received a copy of a ratings letter confirming that the Offered Notes have been rated in the highest rating category by at least one of [Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Services], and such ratings shall not have been reduced or withdrawn and that the Offered Certificates have been rated in [one of the four highest rating categories] by at least one of [Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Service], and such ratings shall not have been reduced or withdrawn.
(m) The Owner Trustee shall have furnished to the Representative a certificate of the Owner Trustee, signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, as to the due acceptance of the Trust Agreement by the Owner Trustee and the due execution and delivery of the Offered Certificates by the Owner Trustee thereunder and such other matters as the Representative shall reasonably request.
(n) The Indenture Trustee shall have furnished to the Representative a certificate of the Indenture Trustee, signed by one or more duly authorized officers of the Indenture Trustee, dated the Closing Date, as to the due acceptance of the Indenture by the Indenture Trustee and the due execution and delivery of the Offered Notes by the Indenture Trustee thereunder and such other matters as the Representative shall reasonably request.
(o) Counsel to the Depositor each Participating Entity shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a SeriesSecurities, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days Business Days prior to the related Closing Date.
(ip) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from KPMG Peat Marwick LLP certified public accountants (who shall be satisfactory to the Representative)accountants, substantially in the form heretofore approved by the Representative and counsel to the Underwriters.
(jq) The Representative shall have received a copy of [(i) a file- stamped acknowledgment copy of the UCC-1 financing statement on Form UCC-1 filed with the Secretary of State of the State of Missouri with respect to the transfer of Receivables (and related items) by DFS to Ganis pursuant to the DFS/Ganis Transfer Agreement, naming DFS as debtor/transferor and Ganis as the secured party/transferee,] (ii) a file-stamped acknowledgment copy of the UCC-1 financing statement on Form UCC-1 filed with the Secretary of State of the State of California with respect to the transfer of Receivables (and related items) by Ganis to the Depositor pursuant to the Ganis/Depositor Transfer Agreement, naming Ganis as debtor/transferor and the Depositor as the secured party/transferee, (iii) a file-stamped acknowledgment copy of the UCC-1 financing statement on Form UCC-1 filed with the Secretary of State of the State of Missouri with respect to the transfer of Receivables (and related items) by the Depositor to the Trust pursuant to the Transfer and Servicing Agreement, naming the Depositor as debtor/transferor and the Trust as secured party/transferee, and (iv) a file-stamped acknowledgment copy of the UCC-1 financing statement on Form UCC-1 filed with the Secretary of State of the State of [ ] with respect to the pledge of Receivables (and related items) by the Trust to the Indenture Trustee pursuant to the Indenture, naming the Trust as debtor and the Indenture Trustee as secured party.
(r) All documents incident to the Agreements, Terms Designated Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative Underwriters and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative Underwriters and counsel to the Underwriters; and the Depositor each Participating Entity shall furnish the Representative Underwriters and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative Underwriters or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at on or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Deutsche Recreational Asset Funding Corp)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series is subject to the accuracy of the representations and warranties on the part of the Depositor herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof and thereof, to the performance by the Depositor of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president of the Depositor to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nomura Home Equity Loan, Inc.)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from (i) a letter, New York time, on the day following dated the date hereof, confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters and (ii) a letter dated the Closing Date, updating the letters referred to in clause (i) above, in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change downgrading in the financial markets in rating of the United States securities of the Company by any “nationally recognized statistical rating organization” (as such term is defined for purposes of Rule 436(g) under the Act), or any outbreak public announcement that any such organization has under surveillance or review its rating of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment any securities of the RepresentativeCompany (other than an announcement with positive implications of a possible upgrading, impracticable or inadvisable to market such Securities or to enforce contracts for the sale and no implication of a possible downgrading, of such Securities, rating); (iii) the any suspension or limitation of trading in securities generally by either the American Stock Exchange or on the New York Stock Exchange, or the establishment any setting of minimum or maximum prices or ranges of prices, by either of for trading on such exchanges or by order of the Commission or any other governmental authority, or exchange; (iv) any banking moratorium declared by federal or federal, New York authorities or North Carolina authorities; or (ivv) any event that would constitute a default under such Terms Agreement outbreak or this Underwriting Agreement escalation of major hostilities in which the United States is involved, any declaration of war by Congress or default any other substantial national or international calamity or emergency if, in the performance reasonable judgment of the Depositor's obligations under Underwriters, the effects of any related Agreement such outbreak, escalation, declaration, calamity or whichemergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of , counsel to the Servicer and the Seller addressed to the Underwriters, dated the Closing Date in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the passage of time or the giving of notice or both, would constitute such defaultUnderwriters may require.
(e) The Representative Underwriters shall have received from a favorable opinion of [Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP], special tax counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing DateCompany, addressed to the Underwriters and dated the Closing Date and reasonably satisfactory in form and substance to the Representative Underwriters, generally to the effect that (i) the information in the Basic Prospectus under “Federal Income Tax Consequences” and in the Final Prospectus under “Federal Income Tax Consequences,” insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs, and the portion of the Trust exclusive of such REMICs will constitute a grantor trust, pursuant to Section 860D of the Internal Revenue Code of 1986 (the “Code”) for federal income tax purposes as of the Closing Date and will continue to qualify as one or more REMICs and as a grantor trust for so long as the Trust continues to meet the requirements set forth in the Code and applicable Treasury regulations.
(f) The Underwriters shall have received a favorable opinion of [Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP], special counsel for the Company, addressed to the Underwriters and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Underwriters shall have received a favorable opinion of counsel for the Custodian, addressed to the Underwriters and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Datemay require.
(i) The Representative Underwriters shall have received a letter, certificate dated the related Closing Date and addressed of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the Underwritersbest of his or her knowledge after reasonable investigation, from certified public accountants (who shall be satisfactory i) the representations and warranties of the Company with respect to the Representative)Mortgage Loans contained in any Basic Document are true and correct, substantially (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the form approved Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Representative Commission, and counsel to (vi) there has been no amendment or other document filed affecting the Underwriterscertificate of formation or limited liability company agreement of the Company, and no such amendment has been authorized.
(j) All documents incident On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the AgreementsUnderwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, Terms Agreements the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of [Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP], counsel for the Underwriters, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(m) All proceedings and other legal matters relating to the authorization, form and validity of this Underwriting Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in form all respects to counsel for the Underwriters, and substance the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(n) At the Closing Date, the Underwriters shall have received from [Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP], counsel for the Underwriters, a letter with respect to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory Final Prospectus, in form and substance to the Representative and counsel satisfactory to the Underwriters; and the Depositor shall furnish the Representative and counsel . The Company will provide or cause to be provided to the Underwriters with such other conformed copies of such opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall may reasonably request.
(k) The Securities of . All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the related Series shall have received provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act)Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Wachovia Mortgage Loan Trust, LLC)
Conditions Precedent to the Obligations of the Underwriters. The obligation obligations of the Underwriters to purchase and pay for the Securities of a Series is shall be subject to the accuracy of the representations and warranties on the part of the Depositor Company contained herein and in the related Terms Agreement as of the respective dates thereof date hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the related Closing Date, to the accuracy of the statements of officers of the Depositor Company made in any certificates delivered pursuant to the provisions hereof and thereofhereof, to the performance by the Depositor Company of its obligations hereunder and thereunder and to the following additional conditions precedentconditions:
(a) The Registration Statement Underwriters shall have become effective not later than 4:00 p.m.received from Deloitte & Touche, New York time, on the day following a letter or letters dated the date hereof confirming that they are independent public accountants within the meaning of this Underwriting Agreement or such later date as the Act and the Rules and Regulations and otherwise in form and substance reasonably satisfactory to the Underwriters and counsel for the Underwriters, relating to, among other things, the information in the Disclosure Package, the Preliminary Prospectus, if any, and the Final Prospectus.
(b) All actions required to be taken and all filings required to be made by the Company under the Act prior to the sale of the Securities shall have been consented to by the Representative; duly taken or made. At and prior to the related Closing Date Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the DepositorCompany or the Underwriters, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition business or properties of the Depositor Company or the Servicer which, in the Representative's judgmentreasonable judgment of the Underwriters, materially impairs the investment quality of the related Securities, ; (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor Company by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal, New York or California authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriters, the effects of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities.
(d) The Underwriters shall have received a favorable opinion of Hunton & Williams LLP, special counsel to the Servicer, addressed to the Underwxxxxxx, dated the Closing Date and in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to such matters as the Underwriters may require.
(e) The Underwriters shall have received a favorable opinion of Hunton & Williams LLP, special tax counsel for the Company, addressed to the Unxxxxxxxxrs, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, generally to the effect that (i) the information in the Base Prospectus under "Federal Income Tax Consequences" and in the Final Prospectus under "Federal Income Tax Consequences," insofar as such information describes federal statutes and regulations or otherwise constitute matters of law or legal conclusions of the statutes or regulations of such jurisdiction have been prepared or reviewed by such counsel, and such information is correct in all material respects; and (ii) assuming compliance with all of the provisions of the Pooling and Servicing Agreement, the applicable portions of the Trust will qualify as one or more REMICs as of the Closing Date.
(f) The Underwriters shall have received a favorable opinion of Hunton & Williams LLP, special counsel for the Company, addressed to the Underwxxxxxx, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters, with respect to the validity of the Certificates, ERISA matters and such other related matters as the Underwriters shall require, and the Company shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of counsel of Hunton & Williams LLP, special counsel for Fremont, addressed to the Underwritexx, xxxxd the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(h) The Company shall have furnished to the Underwriters a letter, dated the Closing Date, of Hunton & Williams LLP, special counsel to the Company stating that nothing has xxxx xx its attention that would lead such counsel to believe that the Disclosure Package containing substantially similar information, as of its respective date and on the Pricing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to financial, statistical or accounting information (including any notes and schedules relating thereto) contained or incorporated.
(i) The Underwriters shall have received a favorable opinion of counsel for the Trustee, addressed to the Underwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to such matters as the Underwriters may require.
(j) The Underwriters shall have received a favorable opinion of counsel to Wells Fargo, as master servicer and trust administrator, addressed to xxx Xnderwriters, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriters and counsel to the Underwriters, with respect to such matters as the Underwriters may require.
(k) The Underwriters shall have received a certificate dated the Closing Date of the President, any Vice President or the Secretary of the Company in which the officer shall state that, to the best of his or her knowledge after reasonable investigation, (i) the representations and warranties of the Company with respect to the Mortgage Loans contained in any Basic Document are true and correct, (ii) the representations and warranties of the Company in this Agreement are true and correct, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iv) no stop order suspending the effectiveness of the Registration Statement has been issued, (v) no proceedings for that purpose have been instituted or are contemplated by the Commission, and (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, and no such amendment has been authorized.
(l) The Underwriters shall have received from Hunton & Williams LLP and any other counsel to the Company, reliance letters adxxxxxxx to the Underwriters and dated the Closing Date, with respect to each opinion delivered by such counsel to the Rating Agencies.
(m) On or before the Closing Date, the Underwriters shall have received evidence satisfactory to the Underwriters that each class of Securities has been given the ratings set forth on Schedule I hereto.
(n) At the Closing Date, the Securities and the Pooling and Servicing Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(o) The Underwriters shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement or the Final Prospectus or any amendment or supplement thereto contains an untrue statement of a fact or omits to state a fact which, in the opinion of Thacher Proffitt & Wood LLP, counsel for the Underwriters, is material xxx xx xxxxxxxx to be stated therein or is necessary to make the statements therein not misleading.
(p) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Securities, the Registration Statement and the Final Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby, shall be reasonably satisfactory in all respects to counsel for the Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(q) At the Closing Date, the Underwriters shall have received from Thacher Proffitt & Wood LLP, counsel for the Underwriters, a letter wixx xxxxxxx xx xxe Fxxxx Prospectus, in form and substance satisfactory to the Underwriters.
(r) The Underwriters shall have received from their counsel, Thacher, Proffitt & Wood LLP, a letter, dated the Closing Date, stating that noxxxxx xxs cxxx to its attention that would lead such counsel to believe that the Disclosure Package containing substantially similar information, as of its date and on the Pricing Date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to as to financial, statistical or accounting information (including any notes and schedules relating thereto) contained or incorporated.
(s) On or before the Closing Date, the Underwriters shall have received from the Company a fully executed Indemnification and Contribution Agreement among the Underwriters and Fremont. The Company will provide or cause to be provided to the Underwriters such conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative Underwriters by notice to the Depositor Company at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 7 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Fremont Mortgage Securities Corp)
Conditions Precedent to the Obligations of the Underwriters. The obligation of the Underwriters to purchase and pay for the Securities of a Series is subject to the accuracy of the representations and warranties on the part of the Depositor herein and in the related Terms Agreement as of the respective dates thereof and the related Closing Date, to the accuracy of the statements of officers of the Depositor made pursuant to the provisions hereof and thereof, to the performance by the Depositor of its obligations hereunder and thereunder and to the following additional conditions precedent:
(a) The Registration Statement shall have become effective not later than 4:00 p.m., New York time, on the day following the date of this Underwriting Agreement or such later date as shall have been consented to by the Representative; and prior to the related Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor, shall be contemplated by the Commission. If the Depositor has elected to rely upon Rule 430A of the Rules and Regulations, the price of the Securities of a Series and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing pursuant to Rule 424(b) of the Rules and Regulations within the prescribed time period, and prior to the related Closing Date the Depositor shall have provided evidence satisfactory to the Representative of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the Rules and Regulations.
(b) The Depositor shall have delivered on or before the related Closing Date to the Representative a certificate, dated as of such Closing Date, signed by its president, a senior vice president or a vice president of the Depositor to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, each related Agreement and this Underwriting Agreement and related Terms Agreement and that:
(i) to the best of such officer's knowledge, the representations and warranties of the Depositor in this Underwriting Agreement and the related Terms Agreement are true and correct in all material respects at and as of such Closing Date with the same effect as if made on such Closing Date;
(ii) the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or to the Depositor's knowledge, threatened as of such Closing Date; and
(iv) nothing has come to such person's attention that would lead such person to believe that the Prospectus as amended and supplemented as of such Closing Date contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Since the respective dates as of which information is given in the Prospectus and Prospectus Supplement, there shall not have occurred any material adverse change or any development involving a prospective material adverse change in or affecting particularly the business or assets of the related Trust or the Depositor or any material adverse change in the financial position or results or operations of such Trust or the Depositor otherwise than as set forth or contemplated in the Prospectus and Prospectus Supplement, which in any such case makes it impracticable or inadvisable in the Representative's judgment to proceed with the public offering or the delivery of the related Securities on the terms and in the manner contemplated in the related Terms Agreement and Prospectus and Prospectus Supplement.
(d) Subsequent to the execution and delivery of a Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business, financial condition or properties of the Depositor which, in the Representative's judgment, materially impairs the investment quality of the related Securities, (ii) any material adverse change in the financial markets in the United States or any outbreak of hostilities or other calamity or crisis, the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market such Securities or to enforce contracts for the sale of such Securities, (iii) the suspension of trading generally by either the American Stock Exchange or the New York Stock Exchange, or the establishment of minimum or maximum prices or ranges of prices, by either of such exchanges or by order of the Commission or any other governmental authority, or any banking moratorium declared by federal or New York authorities or (iv) any event that would constitute a default under such Terms Agreement or this Underwriting Agreement or default in the performance of the Depositor's obligations under any related Agreement or which, with the passage of time or the giving of notice or both, would constitute such default.
(e) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for the Depositor, an opinion, dated the related Closing Date, addressed to the Underwriters and satisfactory in form and substance to the Representative and to counsel to the Underwriters, with respect to such matters as the Representative shall reasonably request.
(f) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Trustee, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(g) The Representative shall have received from counsel (who shall be satisfactory to the Representative) for each Servicer, an opinion, dated the related Closing Date, addressed to the Underwriters and the Depositor and satisfactory in form and substance to the Representative and to counsel to the Underwriters.
(h) Counsel to the Depositor shall have furnished to the Representative any opinions supplied to the rating agencies relating to certain matters with respect to the Securities of a Series, which opinions shall also be addressed to the Underwriters. Drafts of such opinions shall have been furnished to the Representative no later than five business days prior to the related Closing Date.
(i) The Representative shall have received a letter, dated the related Closing Date and addressed to the Underwriters, from certified public accountants (who shall be satisfactory to the Representative), substantially in the form approved by the Representative and counsel to the Underwriters.
(j) All documents incident to the Agreements, Terms Agreements and this Underwriting Agreement shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and all actions taken by the Depositor to authorize the offering and sale of the Securities of a Series shall be reasonably satisfactory in form and substance to the Representative and counsel to the Underwriters; and the Depositor shall furnish the Representative and counsel to the Underwriters with such other opinions, certificates, letters and documents as the Representative or counsel to the Underwriters shall reasonably request.
(k) The Securities of the related Series shall have received the ratings specified in the related Terms Agreement.
(l) On or prior to the related Closing Date, there has been no downgrading, nor has any notice been given of (i) any intended or possible downgrading or (ii) any review or possible changes in rating the direction of which has not been indicated, in the rating accorded and originally requested by and paid for by or on behalf of the Depositor relating to any previously issued asset-backed securities of the Depositor by any "nationally recognized statistical rating organization" (as such term is defined for purposes of the Exchange Act). If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Underwriting Agreement (with respect to the related Securities) and the related Terms Agreement may be terminated by the Representative by notice to the Depositor at any time at or prior to the related Closing Date, and such termination shall be without liability of any party to any other party except as provided in Section 5 hereof.
Appears in 1 contract
Samples: Underwriting Agreement (Nomura Asset Acceptance Corp)
