Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions: (a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated the Closing Date, substantially to the effect set forth in Exhibit A. (b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that: (i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date; (ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and (iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation. (d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Sources: Underwriting Agreement (Home Equity Mortgage Pass-Through Certificates, Series 2006-4)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Securities shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall LLP, counsel for the Company, to have furnished to the Underwriter their opinion and negative assurance letter, each dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(c) The Company shall have requested and caused DLA Piper LLP (US), counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Maryland or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(d) The Underwriter shall have received from ▇▇▇▇▇ Day, counsel for the Underwriter, such opinion or opinions, dated the Closing Date, substantially Date and addressed to the effect set forth in Exhibit A.Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(be) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice Chairman of the Board or the President and the principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the Prospectus offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has come been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Operating Partnership and their subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused Ernst & Young LLP to his attention that would lead him have furnished to believe that the Registration StatementUnderwriter, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to the Underwriter), dated as of the Execution Time and as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Daterespectively, in form and substance satisfactory to the Underwriter, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect that they financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have performed certain been (i) any change or decrease specified procedures in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a result whole, whether or not arising from transactions in the ordinary course of which they business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have determined been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationrequest.
(dj) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Company shall have furnished to the Underwriter a certificate of the principal financial or accounting officer of the Company, at the Execution Time and at the Closing Date, to the effect that the signer of such certificate is familiar with the accounting, operations and records systems of the Company, certifying that certain statements in identified pages of the Company’s proxy statement are, to the knowledge of the signer, accurate in all material respects and such other matters as the Underwriter shall reasonably request. If any of the conditions specified in this Section 6 shall not have been rated “AAA” fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by Standard & Poor’sthe Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ Day, a division of The counsel for the Underwriter, at ▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ Investors Service▇▇▇▇▇, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter hereunder, as to purchase the Certificates Notes to be delivered at the Delivery Date, shall be subject subject, in its discretion, to the accuracy in condition that all respects of the representations and warranties on the part and other statements of the Depositor contained Company herein are, at and as of the date hereof and the Closing Delivery Date, to true and correct and the accuracy of condition that the statements of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company shall have performed all of its obligations hereunder theretofore to be performed, and to the following additional conditions, unless any such condition is waived in writing by the Underwriter:
(a) ▇▇The Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b); each Issuer Free Writing Prospectus shall have been filed with the Commission if, in the manner and within the time period required by Rule 433; no stop order suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose or pursuant to Section 8A of the Securities Act shall have been initiated or, to the knowledge of the Company, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriter.
(b) On the Delivery Date, ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Underwriter, shall have furnished to the Underwriter an opinion or opinions, dated such dates, with respect to the issuance and sale of the Notes on each the Delivery Date, the Registration Statement, the Disclosure Package, the Prospectus, and other related matters as the Underwriter may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(c) On the Delivery Date, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP ("▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇"), counsel for the Company, and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel to the Company shall have furnished to the Underwriter written opinions, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Datedates, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature matters set forth in the Definitive Free Writing Prospectus on Exhibits A and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor andB hereto, where applicablerespectively. In rendering such opinions, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by & ▇▇▇▇▇’▇▇▇▇ Investors Servicemay rely as to matters of fact, Inc. to the extent deemed proper, on certificates of responsible officers of the Company and its subsidiaries, and public officials.
(“Moody’s”). The Class M-1 Certificates d) On the date of this Agreement and also at the Delivery Date, ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇ Advisors, LLP, shall have furnished to the Underwriter a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Underwriter, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information of the Company or Lone Star, as the case may be, contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus.
(i) The Company and its subsidiaries shall not have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, any loss or interference with their respective businesses from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or expressly contemplated in the Disclosure Package and the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have been rated “AA+” any change in the capital stock or long-term debt of the Company or its subsidiaries (except for newly-issued shares issued pursuant to the Company's employee benefit plans, stock-based incentive plans, incentive compensation plans, or other similar plans in the ordinary course of business and borrowings and repayments under the Company's revolving credit facility in the ordinary course of business) or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company or its subsidiaries, otherwise than as set forth or contemplated in the Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Underwriter so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes being delivered at such Delivery Date on the terms and in the manner contemplated by S&P, “AA+” by Fitch, “AA the Prospectus.
(high)” by DBRS and “Aa1” by Moody’s. f) The Class M-2 Certificates Company shall have been rated “AA” furnished or caused to be furnished to the Underwriter on such Delivery Date certificates of officers of the Company satisfactory to the Underwriter as to the accuracy of the representations and warranties of the Company herein at and as of the date hereof and the Delivery Date, as to the performance by S&Pthe Company of all of its obligations hereunder to be performed at or prior to such Delivery Date, “AA+” by Fitchas to the matters set forth in subsections (a) and (e) of this Section 8 and as to such other matters as the Underwriter may reasonably and timely request in writing.
(g) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, “AA” by DBRS or other arrangements of the transactions contemplated hereby.
(h) Subsequent to the earlier of (A) the Time of Sale and “Aa2” by Moody’s. The Class M-3 Certificates (B) the execution and delivery of this Agreement, (i) no downgrading shall have been rated “AA-” occurred in the rating accorded the Notes or any other debt securities or preferred stock of or guaranteed by S&Pthe Company or any of its subsidiaries by any "nationally recognized statistical rating organization", “AA-” by Fitchas such term is defined for purposes of Section 3(a)(62) of the Exchange Act, “AA and (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates ii) no such organization shall have been rated “A+” publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Notes or of any other debt securities or preferred stock of or guaranteed by S&Pthe Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(i) On or before such Delivery Date, “A+” by Fitch, “A (high)” by DBRS the Underwriter and “A1” by Moody’s. The Class M-5 Certificates counsel for the Underwriter shall have been rated “A” by S&Preceived such information, “A+” by Fitchdocuments and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, “A” by DBRS or in order to evidence the accuracy of any of the representations and “A2” by Moody’swarranties, or the satisfaction of any of the conditions or agreements, herein contained. The Class M-6 Certificates If any of the conditions specified in this Section 8 shall not have been rated “A-” fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Delivery Date by S&Pthe Underwriter. Notice of such cancellation shall be given to the Company in writing, “A” or by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A telephone or facsimile (lowwith written confirmation of receipt)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P..
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor Authority contained herein herein, as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the Authority made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor Authority of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) At the Closing Date, the Formation Documents and the District Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, Bond Counsel and Disclosure Counsel for the Authority, and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished ▇▇, a Professional Corporation, counsel to the Underwriter opinionsUnderwriter, dated the Closing Date, substantially to the effect set forth in Exhibit A.shall be necessary and appropriate;
(b) The Depositor shall have furnished to information contained in the Underwriter a certificate of the DepositorOfficial Statement will, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect and as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued date of any supplement or amendment thereto pursuant to Section 2(m) hereof, be true, correct and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statementcomplete in all material respects and will not, as of the Closing DateDate or as of the date of any supplement or amendment thereto pursuant to Section 2(m) hereof, contains contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(c) Deloitte & Touche LLP will Between the date hereof and the Closing Date, the market price or marketability of the Bonds at the initial offering prices set forth in the Official Statement shall not have furnished been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the Authority terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(2) any amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the status of the Authority or the District, its property, income, securities (or interest thereon), the validity or enforceability of the Special Tax or the ability of the Authority to construct or acquire the improvements as contemplated by the Formation Documents, the District Documents or the Official Statement;
(3) any event occurring, or information becoming known, which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Preliminary Official Statement or the Official Statement, or results in the Preliminary Official Statement or the Official Statement containing any untrue statement of a lettermaterial fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(4) the declaration of war or the escalation of, or engagement in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to the effective operation of the government of, or the financial community in, the United States which, in the judgment of the Underwriter, makes it impracticable or inadvisable to proceed with the offering or the delivery of the Bonds on the terms and in the manner contemplated in the Preliminary Official Statement or the Official Statement;
(5) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, or the general suspension of trading on any national securities exchange or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the Securities and Exchange Commission (the “SEC”) or any other governmental authority having jurisdiction that, in the Underwriter’s reasonable judgment, makes it impracticable for the Underwriter to market the Bonds or enforce contracts for the sale of the Bonds;
(6) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(7) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
(8) there shall have been any material adverse change in the levy or collection of the Special Tax that in the Underwriter’s reasonable judgment will materially adversely affect the market for the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(9) there shall be established any new restriction on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order;
(10) a stop order, release, regulation, or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made to the effect that the issuance, offering, or sale of the Bonds, including all the underlying obligations as contemplated hereby or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Exchange Act, and the Trust Indenture Act of 1939, as amended.
(d) On the Closing Date, the Underwriter shall have received counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) The Formation Documents and the District Documents, together with a certificate dated as of the Closing DateDate of the Secretary of the Board to the effect that each Formation Document is a true, correct and complete copy of the one duly adopted by the Board;
(2) The Official Statement;
(3) An unqualified approving opinion for the Bonds, dated the Closing Date and addressed to the Authority, of ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, Bond Counsel for the Authority, in the form attached to the Preliminary Official Statement as Appendix E, and substance satisfactory an unqualified letter of such counsel, dated the Closing Date and addressed to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as approving opinion addressed to the District may be relied upon by the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in to the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.same extent as if such opinion was addressed to it;
(d4) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4A supplemental opinion or opinions, Class A-1dated the Closing Date and addressed to the Underwriter, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. A Professional Law Corporation, Bond Counsel for the Authority, to the effect that (“Moody’s”). The Class M-1 Certificates shall i) the District Documents have been rated duly authorized, executed and delivered by the Authority, and, assuming such agreements constitute a valid and binding obligation of the other parties thereto, constitute the legally valid and binding agreements of the Authority enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and may be subject to general principles of equity (regardless of whether such enforceability is considered in equity or at law); (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; (iii) the information contained in the Official Statement on the cover and under the captions “AA+INTRODUCTION,” “THE BONDS,” “SECURITY FOR THE BONDS,” “LEGAL MATTERS Tax Matters” and Appendices B and E thereof (except that no opinion or belief need be expressed as to any financial or statistical data contained in the Official Statement), insofar as it purports to summarize or replicate certain provisions of the Law, the Bonds and the Indenture and the exemption from State of California personal income taxes of interest on the Bonds present a fair and accurate summary of such provisions; (iv) the Special Tax has been duly and validly authorized in accordance with the provisions of the Law and, except as the same may be limited by S&Pbankruptcy, “AA+” insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights, by Fitchequitable principles and by the exercise of judicial discretion in appropriate cases, “AA a lien to secure payment of the Special Taxes has been imposed on all nonexempt property in the District, and
(high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall v) the Prior Bonds have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.defeased in accordance with the provisions of the indenture pursuant to which they were issued;
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations representations, warranties and warranties agreements on the part of the Depositor District contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the District made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the Depositor District of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇At the Closing Date, the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall be in full force and effect in the form heretofore submitted to the Underwriter, with only such changes as shall be agreed to in writing by the Underwriter, and there shall have been taken in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP LLP, Bond Counsel, shall have furnished to the Underwriter opinions, dated be necessary and appropriate;
(b) At the Closing Date, substantially the Official Statement, the Indenture, this Bond Purchase Agreement, the Disclosure Certificate and the Escrow Agreement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the effect Underwriter;
(c) Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth in Exhibit A.the Official Statement, of the Bonds shall not have been materially adversely affected, in the judgment of the Underwriter, by reason of any of the following:
(b1) The Depositor legislation shall have furnished been enacted by the Congress of the United States or the Legislature of the State of California or favorably reported thereto for passage by any Committee to which such legislation has been referred for consideration or be pending before any such Committee or shall have been recommended to the Underwriter a certificate Congress of the Depositor, signed United States for passage by the PresidentPresident of the United States or recommended to the Legislature of the State of California for passage by the Governor of the State of California, Senior Vice or a decision shall have been rendered by a court of the United States, including the Tax Court of the United States, or of the State of California, or a ruling or an official release shall have been made or a regulation shall have been proposed or made by the Treasury Department of the United States or the Internal Revenue Service or other federal or State of California authority having jurisdiction over tax matters, with respect to federal or State of California taxation upon revenues or other income of the District or upon interest on obligations of the general character of the Bonds, or other actions or events shall have transpired that would, in the reasonable judgment of the Underwriter, have the purpose or effect, directly or indirectly, of changing the federal or State of California tax consequences of any of the transactions contemplated in connection herewith and that in the reasonable judgment of the Underwriter, affects materially and adversely (i) the market price or marketability of the Bonds or (ii) the ability of the Underwriter to enforce contracts for the sale of the Bonds;
(2) legislation shall have been enacted or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court of competent jurisdiction or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made by or on behalf of the Securities and Exchange Commission, or any Vice President, dated other governmental agency having jurisdiction of the Closing Datesubject matter, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties obligations of the Depositor in this Agreement are true and correct in all material respects on and as general character of the Closing Date with Bonds, or the same Bonds, including any or all underlying obligations, are not exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”), that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or that the issuance, offering or sale of the Bonds, including any or all underlying obligations, is or would be in violation of the federal securities laws as amended and then in effect as if made on or that suspends the Closing Date, and use of the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed Official Statement or satisfied at any supplement thereto or prior to the Closing Dateany proceeding for such purpose shall have been initiated or threatened in any such court or by any such authority;
(ii3) No stop order suspending the effectiveness outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or the engagement in major hostilities by the United States or the occurrence of any other national emergency or calamity relating to the effective operation of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; andgovernment of or the financial community in the United States;
(iii4) Nothing the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange;
(5) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, Underwriter;
(6) the withdrawal or downgrading of any rating of the Bonds by a national rating agency or notice having been given by a national rating agency of any intended or potential downgrading or other review or possible change in such rating that does not indicate the direction of such possible change; or
(7) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or has come to his attention that would lead him to believe the effect that the Registration Statement, as of the Closing Date, Official Statement contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
(8) an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice by or on behalf of the Treasury Department of the United States, the Internal Revenue Service or other governmental agency relating to Circular 230 (31 C.F.R. part 10) is issued, made or proposed, that, in the judgment of the Underwriter, affects materially and adversely the market for the Bonds or the market price generally of obligations of the general character of the Bonds.
(d) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) Copies of the Indenture, the Disclosure Certificate and the Escrow Agreement, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(2) An approving opinion, dated the Closing Date and addressed to the District, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Bond Counsel, in substantially the form attached as Appendix D to the Official Statement, together with a letter from said Bond Counsel authorizing the Underwriter to rely on said opinion, and a supplemental opinion in form acceptable to the Underwriter and the District, dated the Closing Date and addressed to the Underwriter and the District, to the effect that:
(i) the Bond Purchase Agreement has been duly executed and delivered by the District and, assuming due authorization, execution and delivery by the Underwriter, is a valid and binding obligation of the District, subject to laws relating to bankruptcy, insolvency, reorganization arrangement, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally, to the application of equitable principles, to the exercise of judicial discretion in appropriate cases and to the limitations on legal remedies against a local health care district in the State of California;
(ii) the statements contained in the Official Statement in the sections thereof entitled: “THE BONDS,” “SECURITY FOR THE BONDS,” “TAX MATTERS,” “EXHIBIT C—SUMMARY OF PRINCIPAL LEGAL DOCUMENTS,” and “EXHIBIT D—FORM OF FINAL OPINION OF BOND COUNSEL,” insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture, the Disclosure Certificate, the Escrow Agreement and Bond Counsel’s opinion concerning certain tax matters are accurate in all material respects; and
(iii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification as an indenture pursuant to the Trust Indenture Act of 1939, as amended.
(3) An opinion dated the Closing Date and addressed to the District and the Underwriter, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the District, in substantially the form attached hereto as Exhibit C.
(4) A certificate of the Executive Director of the District, or such other officer as is acceptable to the Underwriter, dated the Closing Date, to the effect that the Prospectus, representations and agreements of the District contained herein are true and correct in all material respects as of the Closing Date, and:
(i) no litigation is pending or, to the knowledge of such officer, threatened
(a) to restrain or enjoin the issuance or delivery of any of the Bonds or the collection of Revenues pledged under the Indenture, (b) in any way contesting or affecting the authority for the issuance of the Bonds or the validity of the Bonds, the Indenture, the Disclosure Certificate or this Bond Purchase Agreement, or (c) in any way contesting the existence or powers of the District;
(ii) no event affecting the District has occurred since the date of the Official Statement which would cause as of the Closing Date any statement or information contained in the Official Statement to contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements and information therein, in the light of the circumstances under which they were made, not misleading;
(iii) since June 30, 2021, no material and adverse change has occurred in the financial position or results of operations of the District other than as is set forth in the Official Statement;
(iv) the District has not, since June 30, 2021, incurred any material liabilities other than in the ordinary course of business or as set forth in or contemplated by the Official Statement; and
(v) no proceedings are pending or threatened (1) in any way contesting or affecting the District’s status as a local health care district or (2) to subject any income of the District to federal income taxation;
(5) Satisfactory evidence that the Bonds have been rated “ ” or better by ▇▇▇▇▇’▇ Investors Service;
(6) An opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Salmon, P.L.C., as disclosure counsel (“Disclosure Counsel”), addressed to the District and the Underwriter, to the effect that the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and to the effect that, based upon its participation in the preparation of the Official Statement as Disclosure Counsel and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, such counsel has no reason to believe that, as of the date of the Official Statement or as of the date of Closing, the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information with respect to DTC and the book-entry system and the information included in Appendices thereto, as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(c7) Deloitte & Touche LLP will have furnished A certified copy of the Resolution authorizing the execution and delivery of the Bonds, the Indenture, the Disclosure Certificate, the Bond Purchase Agreement, the Escrow Agreement and the Official Statement and ratifying the distribution of the Preliminary Official Statement and authorizing distribution of the Official Statement;
(8) An opinion of counsel to the Underwriter a letter, dated as of the Closing Date, Trustee in form and substance satisfactory to the UnderwriterUnderwriter and Bond Counsel;
(9) A certificate of the Trustee, dated the Closing Date and signed by an authorized Underwriter of the Trustee, to the effect that they that:
(i) The Trustee is a duly organized and existing national banking association in good standing under the laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Indenture;
(ii) The Trustee is duly authorized to enter into the Indenture and has duly executed and delivered the Indenture;
(iii) The Bonds have performed certain specified procedures as been duly authenticated and delivered by the Trustee;
(iv) The execution and delivery of the Indenture and the authentication and delivery of the Bonds and compliance with the provisions thereof, will not conflict with, or constitute a result breach of or default under, the Trustee’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which they have determined that such information as the Trustee is subject or by which it is or may be bound; provided, however, the Trustee need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(v) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Trustee’s knowledge, threatened against the Trustee, affecting the existence of the Trustee, or the entitlement of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Bonds or the collection of revenues pledged or to be pledged to pay the principal, redemption premium, if any, and interest represented by the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Indenture, or the Bonds; or contesting the power or authority of the Trustee to enter into, adopt or perform its obligations under any of the foregoing, wherein an unfavorable decision, ruling or finding would materially adversely affect the validly or enforceability of the Indenture or the Bonds;
(10) An opinion of counsel to the Escrow Bank in form and substance satisfactory to the Underwriter may reasonably request and Bond Counsel;
(11) A certificate of the Escrow Bank, dated the Closing Date and signed by an accountingauthorized Underwriter of the Escrow Bank, financial or statistical nature set forth to the effect that:
(i) The Escrow Bank is a duly organized and existing national banking association in the Definitive Free Writing Prospectus and the Prospectus Supplement good standing under the caption “laws of the United States of America and has all necessary power and authority to enter into and perform its duties under the Escrow Agreement;
(ii) The Initial Mortgage Loans” Escrow Bank is duly authorized to enter into the Escrow Agreement and elsewhere therein agrees has duly executed and delivered the Escrow Agreement;
(iii) The execution and delivery of the Escrow Agreement and compliance with the accounting records provisions thereof, will not conflict with, or constitute a breach of or default under, the Escrow Bank’s duties under any law, administrative regulation, court decree, resolution, articles of association, bylaws or other agreement to which the Escrow Bank is subject or by which it is or may be bound; provided, however, the Escrow Bank need not make any representations and warranties with respect to compliance with any federal and state securities laws; and
(iv) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, served upon or, to the best of the Depositor andEscrow Bank’s knowledge, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.threate
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Offered Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof 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 Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP The Underwriter shall have furnished received from PricewaterhouseCoopers LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter opinionsand counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Date, substantially updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the effect set forth in Exhibit A.Underwriter and counsel for the Underwriter.
(b) The Depositor 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 Offered Certificates shall have furnished been duly taken and made. At and prior to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to no stop order suspending the effect that the signer effectiveness of such certificate has carefully examined the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the Prospectus knowledge of the Company or the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and that:
delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or the Servicer which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Offered Certificates; (ii) any downgrading in the rating of the Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of the Servicer (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, North Carolina or New York 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 Underwriter, 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 Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of an executive officer of the Company in which such officer shall state that, to the best of such officer's knowledge after reasonable inspection, (i) the representations and warranties of the Depositor Company contained in this Agreement the Basic Documents are true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, Date and (ii) the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(iie) No stop order suspending the effectiveness The Underwriter shall have received a certificate of the Registration Statement has been issued and no proceedings for that purpose have been instituted oran executive officer of BANA, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, dated as of the Closing Date, to the effect that, to the b▇▇▇ of such officer's knowledge, (i) the representations and warranties contained in the Mortgage Loan Purchase Agreement are true and correct with the same force and effect as though made on and as of the Closing Date and (ii) such officer has reviewed the Final Prospectus as amended or supplemented to the Closing Date and nothing has come to such officer's attention that would lead such officer to believe that the Final Prospectus as amended or supplemented, insofar as it relates to BANA or the Mortgage Loans originated or acquired by BANA, contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading.
(f) The Underwriter shall have received an opinion of Cadwalader, or Wickersham & Taft LLP, special counsel to the Compan▇, ▇▇▇▇▇ ▇he Closi▇▇ ▇ate, ▇▇ form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(h) The Underwriter shall have received from Cadwalader, Wickersham & Taft LLP, special counsel for the Underwriter, a le▇▇▇▇ ▇▇▇▇▇ the ▇▇osing Date with respect to the Final Prospectus, substantially to the effect that nothing has come to such counsel's attention in the course of its review of the Final Prospectus which causes it to believe that the Final Prospectus, as of the date of the Prospectus Supplement or the Closing Date, contains contained any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(ci) Deloitte & Touche LLP will The Underwriter shall have furnished received an opinion of reasonably acceptable counsel to the Underwriter a letterTrustee and the Securities Administrator, dated as of the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(j) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Certificates and the Pooling Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) 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, in the opinion of counsel to the Underwriter, 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 effect authorization, form and validity of this Agreement, the Pooling Agreement, the Mortgage Loan Purchase Agreement, the Certificates, 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 have performed certain specified procedures as a result may reasonably request to enable them to pass upon such matters. The Company will provide or cause to be provided to the Underwriter such conformed copies of which they have determined that such information opinions, certificates, letters and documents as the Underwriter may reasonably request of an accountingrequest. All opinions, financial letters, evidence and certificates mentioned above or statistical nature set forth elsewhere in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees this Agreement shall be deemed to be in compliance with the accounting records of provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding Underwriter. If any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates condition specified in this Section 6 shall not have been rated “AAA” fulfilled when and as required to be fulfilled, this Agreement may be terminated by Standard & Poor’sthe Underwriter by notice to the Company at any time at or prior to the Closing Date, a division and such termination shall be without liability of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.any party to any other party except as provided in Section 7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Mortgage 2008-a Trust)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall LLP, counsel for the Company, to have furnished to the Underwriter their opinion and negative assurance letter, each dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(c) The Company shall have requested and caused DLA Piper LLP (US), counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Maryland or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(d) The Underwriter shall have received from ▇▇▇▇▇ Day, counsel for the Underwriter, such opinion or opinions, dated the Closing Date, substantially Date and addressed to the effect set forth in Exhibit A.Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(be) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice Chairman of the Board or the President and the principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the Prospectus offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has come been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Operating Partnership and their subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused Ernst & Young LLP to his attention that would lead him have furnished to believe that the Registration StatementUnderwriter, as of at the Execution Time and at the Closing Date, contains any untrue statement of a material fact or omits letters, (which may refer to state any material fact required letters previously delivered to be stated therein or necessary to make the statements therein not misleadingUnderwriter), or that the Prospectus, dated respectively as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated Execution Time and as of the Closing Date, in form and substance satisfactory to the Underwriter, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect that they financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have performed certain been (i) any change or decrease specified procedures in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a result whole, whether or not arising from transactions in the ordinary course of which they business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Execution Time, there shall not have determined been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationrequest.
(dj) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Securities shall have been rated “AAA” listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(k) Prior to the Closing Date, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each executive officer and director of the Company addressed to the Underwriter.
(l) The Company shall have furnished to the Underwriter a certificate of the principal financial or accounting officer of the Company, at the Execution Time and at the Closing Date, to the effect that the signer of such certificate is familiar with the accounting, operations and records systems of the Company, certifying that certain statements in identified pages of the Company’s proxy statement are, to the knowledge of the signer, accurate in all material respects and such other matters as the Underwriter shall reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by Standard & Poor’sthe Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ Day, a division of The counsel for the Underwriter, at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇-, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter hereunder to purchase the Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date, as of the date the Prospectus Supplement or any supplement thereto is filed with the Commission and as of the Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to satisfaction, as of the Closing Date, of the following additional conditions:
(a) ▇▇▇The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and not withdrawn and no proceedings for that purpose shall have been instituted or, to the Company's knowledge, threatened; and the Prospectus Supplement shall have been filed or transmitted for filing with the Commission in accordance with Rule 424 under the ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated the Closing Date, substantially to the effect set forth in Exhibit A..
(b) The Depositor Company shall have furnished delivered to the Underwriter a certificate of the DepositorCompany, signed by an authorized officer of the President, Senior Vice President or any Vice President, Company and dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
: (i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on at and as of the Closing Date with the same effect as if made on the Closing Date, ; and (ii) the Depositor Company has in all material respects complied with all the agreements and satisfied all the conditions on its part that are required hereby to be performed or satisfied at or prior to the Closing Date;.
(c) The Underwriter shall have received with respect to the Company a good standing certificate from the Secretary of State of the State of Delaware, dated not earlier than 30 days prior to the Closing Date.
(d) The Underwriter shall have received from the Secretary or an assistant secretary of the Company, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (i) each individual who, as an officer or representative of the Company, signed this Agreement, the Pooling and Servicing Agreement or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein or in the Pooling and Servicing Agreement, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (ii) no event (including, without limitation, any act or omission on the part of the Company) has occurred since the date of the good standing certificate referred to in paragraph (c) above which has affected the good standing of the Company under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an assistant secretary of the Company) of the certificate of incorporation and by-laws of the Company, as in effect on the Closing Date, and of the resolutions of the Company and any required shareholder consent relating to the transactions contemplated in this Agreement and the Pooling and Servicing Agreement.
(e) You shall have received from Sidley & Austin, special counsel for the Company, a favorable opinion, dated the Closing Date and satisfactory in form and substance to you and counsel for the Underwriter, to the effect that:
(i) The Registration Statement and any post-effective amendments thereto have become effective under the 1933 Act.
(ii) No To the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and not withdrawn, and no proceedings for that purpose have been instituted or, to his knowledge, threatened; andor threatened and not terminated.
(iii) Nothing has come The Registration Statement, each post-effective amendment thereto (if any), the Basic Prospectus and the Prospectus Supplement, as of their respective effective or issue dates (other than the financial statements, schedules and other financial and statistical information contained therein or omitted therefrom, as to his attention that would lead him which such counsel need express no opinion), complied as to believe that form in all material respects with the applicable requirements of the 1933 Act and the rules and regulations thereunder.
(iv) To the best knowledge of such counsel, there are no material contracts, indentures or other documents relating to the Certificates of a character required to be described or referred to in the Registration Statement or the Prospectus Supplement or to be filed as exhibits to the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact other than those described or omits referred to state any material fact required to be stated therein or necessary to make the statements therein not misleading, filed or that the Prospectus, incorporated by reference as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingexhibits thereto.
(cv) Deloitte & Touche LLP will have furnished to the Underwriter The Pooling and Servicing Agreement constitutes a lettervalid, dated as legal, binding and enforceable agreement of the Closing DateCompany, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, to general principles of equity regardless of whether enforcement is sought in form a proceeding in equity or at law and substance satisfactory to public policy considerations underlying the Underwritersecurities laws, to the effect that they have performed certain specified procedures as a result of which they have determined extent that such information as public policy considerations limit the enforceability of the provisions of this Agreement or the Pooling and Servicing Agreement that purport to provide indemnification from securities law liabilities.
(vi) The Certificates, when duly and validly executed and authenticated in the manner contemplated in the Pooling and Servicing Agreement and delivered and paid for by the Underwriter may reasonably request as provided herein, will be duly and validly issued and outstanding and entitled to the benefits of an accounting, financial or statistical nature the Pooling and Servicing Agreement.
(vii) The statements set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial headings "Description of the Certificates" and "Servicing of the Mortgage Loans” " and elsewhere therein agrees with in the accounting records Basic Prospectus under the headings "Description of the Depositor andSecurities", where applicable"Servicing of Mortgage Loans" and "The Trust Agreement", the Mortgage Loan files insofar as such statements purport to summarize certain material provisions of the DepositorCertificates and the Pooling and Servicing Agreement, excluding any questions provide a fair and accurate summary of legal interpretationsuch provisions.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Sources: Underwriting Agreement (Structured Asset Securities Corp)
Conditions to the Obligations of the Underwriter. The obligations obligation ------------------------------------------------ of the Underwriter to purchase the Certificates Securities shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof 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 Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and the Final Prospectus shall have been filed or mailed for filing with the Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Underwriter the opinion of [Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇] [▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to ▇▇▇▇, L.L.P.], counsel for the Underwriter opinions, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice PresidentCompany, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement paragraphs (iv), (vii), (viii), (x) and (xiv) below, and the Prospectus opinion of [ ] special counsel to the Company, dated the Closing Date, to the effect of paragraphs (i), (ii), (iii), (v), (vi), (ix), (xi), (xii) and that(xiii) below:
(i) The representations the Company is a duly incorporated and warranties validly existing corporation in good standing under the laws of the Depositor in this Agreement are true State of Delaware, has the corporate power and correct in all material respects on authority to own its properties and as of the Closing Date with the same effect as if made on the Closing Date, and the Depositor has complied with all the agreements and satisfied all the conditions on conduct its part to be performed or satisfied at or prior to the Closing Datebusiness currently conducted;
(ii) No the Company has no subsidiaries;
(iii) the Company is not required to be qualified or licensed to do business as a foreign corporation in any jurisdiction;
(iv) assuming that the Securities are rating at the time of transfer to the Underwriter in one of the two highest rating categories by a nationally recognized statistical rating organization, each such Security at such time will be a "mortgage related security" as such term is defined in Section 3(a)(41) of the Exchange Act;
(v) the Pooling Agreement has been duly authorized, executed and delivered by the Company;
(vi) the Securities have been duly authorized by the Company;
(vii) upon due authorization, execution and delivery by the parties thereto, the Pooling Agreement will constitute a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or other laws relating to creditors' rights generally, and to general principles of equity including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity), and except that the enforcement of rights with respect to indemnification and contribution obligations may be limited by applicable law;
(viii) the Securities, when duly executed, authenticated and delivered in the manner contemplated in the Pooling Agreement and paid for by the Underwriter pursuant to this Agreement, will be validly issued and outstanding and entitled to the benefits of the Pooling Agreement;
(ix) to the knowledge of such counsel, there is no legal or governmental action, investigation or proceeding pending or threatened against the Company (a) asserting the invalidity of this Agreement, the Pooling Agreement or the Certificates, (b) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated hereby or (c) which would materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, this Agreement, the Pooling Agreement or the Certificates;
(x) the Registration Statement has become effective under the Act; to the knowledge of such counsel (a) no stop order suspending the effectiveness of the Registration Statement with respect to the Securities has been issued and no proceedings for that purpose have been instituted or are pending or are threatened under the Act; and (b) the Registration Statement, as of its effective date, and the Final Prospectus, as of the date thereof, and each revision or amendment thereof or supplement thereto relating to the Securities, as of its effective date, appeared on their respective faces to be appropriately responsive in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder applicable to such documents as of such respective dates; and, as of the date of the Final Prospectus, the statements set forth in the Final Prospectus under the headings "ERISA Considerations" and "Federal Income Tax Consequences" were, to the extent that they summarize matters of federal law or legal conclusions, correct in all material respects;
(xi) this Agreement has been duly authorized, executed and delivered by the Company;
(xii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriter and such other approvals (specified in such opinion) as have been obtained;
(xiii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under the certificate of incorporation or by-laws of the Company or, to his knowledgethe best knowledge of such counsel, threatenedthe terms of any indenture or other agreement or instrument known to such counsel and to which the Company is a party or by which it is bound, or any order or regulation known to such counsel to be applicable to the Company of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company; and
(iiixiv) Nothing has come the Pooling Agreement is not required to his be qualified under the Trust Indenture Act of 1939, as amended and the Trust Fund is not required to be registered under the Investment Company Act of 1940, as amended. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement and the Pooling Agreement. Such opinion may be qualified as an opinion only on the laws of the State of New York, the laws of each state in which the writer of the opinion is admitted to practice law and the Federal law of the United States. To the extent that such counsel relies upon the opinion of other counsel in rendering any portion of its opinion, the opinion of such other counsel shall be attached to and delivered with the opinion of such firm that is delivered to the Underwriter.
(c) The Company shall have furnished to the Underwriter a letter, dated the Closing Date, of [Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇] [▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.], counsel to the Company, to the effect that in the course of such counsel's review of the Registration Statement and the Final Prospectus and discussion of the same with certain officers of the Company and its auditors, no facts came to the attention of such counsel that would lead him caused such counsel to believe that the Registration Statement, as of its effective date, or the Closing DateFinal Prospectus, contains as of the date, or any revision or amendment thereof or supplement thereto, as of its effective date, contained any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or that the Final Prospectus, or any revision or amendment thereof or supplement thereto filed prior to the date of such opinion, as of the date of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to any financial statements or other financial, numerical or statistical data contained in the Registration Statement or the Final Prospectus or any material incorporated by reference in the Registration Statement or the Prospectus.
(cd) Deloitte & Touche The Underwriter shall have received copies, addressed to it or on which it is entitled to rely, of opinions of counsel furnished to the rating agencies rating the Securities as set forth on Schedule I hereto (the "Rating Agencies"). ---------------
(e) The Company shall have furnished to the Underwriter a certificate of the Company, signed by an authorized officer thereof, and dated the Closing Date, to the effect that the signer(s) of such certificate has carefully examined the Registration Statement, the Final Prospectus and this Agreement and that to the best of his or her knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or threatened; and
(iii) since the respective dates as of which information is given in the Final Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Prospectus.
(f) On the date hereof, PricewaterhouseCoopers LLP will and/or any other firm of certified independent public accountants acceptable to the Underwriter shall have furnished to the Underwriter a letter, dated as of the Closing Datedate hereof, in form and substance satisfactory to the Underwriter, to confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, and stating in effect that using the assumptions and methodology used by the Company, all of which shall be described in such letter, they have performed certain specified procedures as a result of which they have determined that recalculated such information numbers and percentages set forth in the Final Prospectus as the Underwriter may reasonably request and as are agreed to by such accountants, compared the results of an accountingtheir calculations to the corresponding items in the Final Prospectus, financial or statistical nature and found each such number and percentage set forth in the Definitive Free Writing Final Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees to be in agreement with the accounting records results of such calculations. To the Depositor andextent historical financial information with respect to the Company and/or historical financial, where applicabledelinquency or related information with respect to one or more servicers is included in the Final Prospectus, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationsuch letter or letters shall also relate to such information.
(dg) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Securities shall have been rated “AAA” by Standard & Poor’sreceived the rating or ratings from the Rating Agencies as set forth on Schedule I hereto.
(h) Prior to the Closing Date, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates the Company shall have been rated “AA+” by S&Pfurnished to the Underwriter such further information, “AA+” by Fitchcertificates, “AA (high)” by DBRS opinions and “Aa1” by Moody’sdocuments as the Underwriter may reasonably request. The Class M-2 Certificates If any of the conditions specified in this Section 6 shall not have been rated “AA” fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by S&Pthe Underwriter. Notice of such cancellation shall be given to the Company in writing, “AA+” or by Fitch, “AA” by DBRS telephone or telegraph and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (Ba Mortgage Securities Inc/)
Conditions to the Obligations of the Underwriter. The obligations obligation of ------------------------------------------------ the Underwriter to purchase the Certificates Bonds shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Issuer and the Company contained herein as of the date hereof Execution Time and the Closing Date and on the part of the Company contained in Article 3 of the Sale Agreement and in Section 6.01 of the Servicing Agreement as of the Closing Date, to the accuracy of the statements of the Depositor Issuer and the Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Issuer and the Company of its their obligations hereunder to be performed on or prior to the Closing Date and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM (Eastern Daylight Time), on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM (Eastern Daylight Time) on such date, or (ii) 12:00 Noon (Eastern Daylight Time) on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM (Eastern Daylight Time) on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and 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 threatened.
(b) The Underwriter shall have received opinions of counsel for the Company, portions of which may be delivered by Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have furnished to LLP, outside counsel for the Company, portions of which may be delivered by ▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇, Professional Association, outside counsel for the Company, and portions of which may be delivered by in-house counsel for the Company, as the Underwriter opinionsmay agree, each dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect that they that:
(i) the Company is a validly existing corporation in good standing under the laws of the jurisdiction in which it is chartered or organized and has all requisite corporate power and authority to own its properties, conduct its business as described in the Registration Statement and the Prospectus, and to execute, deliver and perform its obligations under this Agreement, the Sale Agreement, the Servicing Agreement and the Administration Agreement;
(ii) the Sale Agreement, the Servicing Agreement and the Administration Agreement have performed certain specified procedures been duly authorized, executed and delivered by, and constitute legal, valid and binding instruments enforceable against, the Company in accordance with their terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws or equitable principles affecting creditors' rights generally from time to time in effect); this Agreement has been duly authorized, executed and delivered by the Company;
(iii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its affiliates or challenging the Finance Order or the collection of the RRB Charges or the use and enjoyment of RRB Property under the Statute of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as a result an exhibit to the Registration Statement, which is not described or filed as required;
(iv) no consent, approval, authorization or order of which they any court or governmental agency or body is required to be obtained by the Company for the consummation of the transactions contemplated herein, except such as have determined that been obtained in accordance with New Hampshire RSA Chapter 369-B (the "Statute"), the NHPUC Regulations (as defined in Section 1.01 of the Servicing Agreement), the Public Utility Holding Company Act of 1935, as amended (the "1935 Act") and the Act and such information as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Bonds by the Underwriter may reasonably request and such other approvals (specified in such opinion) as have been obtained;
(v) neither the execution and delivery of an accountingthis Agreement, financial the Sale Agreement, the Servicing Agreement, the Administration Agreement nor the consummation of the transactions contemplated by this Agreement, the Sale Agreement, the Servicing Agreement or statistical nature set forth the Administration Agreement nor the fulfillment of the terms of this Agreement, the Sale Agreement, the Servicing Agreement or the Administration Agreement by the Company, will (A) conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time) a default under the articles of incorporation, bylaws or other organizational documents of the Company, or conflict with or breach any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, material agreement or other material instrument to which the Company is a party or by which the Company is bound, (B) result in the Definitive Free Writing Prospectus creation or imposition of any lien upon any properties of the Company pursuant to the terms of any such indenture, agreement or other instrument (other than as contemplated by the Basic Documents and RSA 369-B:7), or (C) violate any New Hampshire or federal law or any order, rule or regulation applicable to the Company of any New Hampshire or federal court or regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Company, or any of its properties; and
(vi) upon the delivery of the fully executed Sale Agreement to the Issuer and the Prospectus Supplement payment of the purchase price of the RRB Property by the Issuer to the Seller pursuant to the Sale Agreement, then (A) the transfer of the RRB Property by the Seller to the Issuer pursuant to the Sale Agreement conveys the Seller's right, title and interest in the RRB Property to the Issuer and will be treated under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records laws of the Depositor State of New Hampshire as an absolute transfer of all of the Seller's right, title, and interest in the RRB Property, other than for federal and state income tax purposes, (B) such transfer of the RRB Property is perfected within the meaning of RSA 369-B:6, VI, (C) assuming that the Issuer does not have notice or knowledge of any conflicting assignment of the RRB Property, such transfer has priority over any other assignment or transfer of the RRB Property, and (D) the RRB Property is free and clear of all liens created prior to its transfer to the Issuer pursuant to the Sale Agreement; the Seller's first mortgage indenture explicitly excludes accounts receivables and contracts from its lien and, where applicabletherefore, the Mortgage Loan files RRB Property is not subject to such lien; and
(vii) no further action with respect to the recording or filing of the DepositorSale Agreement, excluding any questions agreements supplemental thereto, any financing statements, any continuation statements, or any other documents or filings will be necessary prior to January __, 2003, to perfect the transfer of legal interpretationthe RRB Property by the Company to the Issuer pursuant to the Sale Agreement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New Hampshire or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(dc) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Underwriter shall have been rated “AAA” received opinions of counsel for the Issuer and the Company, portions of which may be delivered by Standard Day, ▇▇▇▇▇ & Poor’s▇▇▇▇▇▇ LLP, a division outside counsel for the Issuer and the Company, portions of The which may be delivered by ▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇-▇▇▇▇ Companies▇, Inc. (“S&P”)Professional Association, “AAA” outside counsel for the Issuer and the Company, and portions of which may be delivered by Fitch Ratingsin-house counsel, Inc. (“Fitch”)as the Underwriter may agree, “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” portions of which may be delivered by ▇▇▇▇▇’▇▇▇, ▇▇▇▇▇▇ Investors Service& Finger, Inc. P.A., special Delaware counsel for the Issuer, each dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect that:
(“Moody’s”). The Class M-1 Certificates shall i) the Issuer has been duly formed and is validly existing in good standing as a limited liability company under the laws of the State of Delaware, with all necessary limited liability company power and authority to execute, deliver and perform its obligations under this Agreement, the Sale Agreement, the Servicing Agreement, the Indenture, this Agreement, the Administration Agreement, the Fee and Indemnity Agreement and the Bonds and is registered as a foreign limited liability company and is in good standing in the State of New Hampshire;
(ii) the Sale Agreement, the Servicing Agreement, the Indenture, the Administration Agreement and the Fee and Indemnity Agreement have been rated “AA+” by S&Pduly authorized, “AA+” by Fitchexecuted and delivered by, “AA and constitute legal, valid and binding instruments enforceable against, the Issuer in accordance with their terms (highsubject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws or equitable principles affecting creditors' rights generally from time to time in effect)” by DBRS ; and “Aa1” by Moody’s. The Class M-2 Certificates shall the Bonds have been rated “AA” duly authorized and when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by S&Pthe Underwriter in accordance with the terms of this Agreement, “AA+” will constitute legal, valid and binding obligations of the Issuer entitled to the benefits of the Indenture (subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws or equitable principles affecting creditors' rights generally from time to time in effect); this Agreement has been duly authorized, executed and delivered by Fitchthe Issuer;
(iii) to the extent described in the Final Prospectus, “AA” by DBRS the Sale Agreement, the Servicing Agreement, the Indenture, the Administration Agreement, the Fee and “Aa2” by Moody’s. The Class M-3 Certificates shall have Indemnity Agreement, the LLC Agreement and the Bonds conform to the descriptions thereof contained therein;
(iv) the Indenture has been rated “AA-” by S&Pduly qualified under the Trust Indenture Act;
(v) to the knowledge of such counsel, “AA-” by Fitchafter having made inquiry of officers of the Issuer, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&Pbut without having made any other investigation, “A+” by Fitchthere is no pending or threatened action, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.suit or proceeding before any court or governmental
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase accept delivery of and pay for the Certificates on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations representations, warranties and warranties agreements on the part of the Depositor District contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the District, the Corporation and the Trustee made in any Officers’ certificates or other documents furnished pursuant to the provisions hereofhereof or the Certificate Documents, and to the performance by the Depositor District, the Corporation, and the Trustee of its their respective obligations to be performed hereunder and under the Certificate Documents at or prior to the Closing Date, and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated At the Closing Date, the Certificates, the Certificate Documents and the Official Statement shall have been duly authorized, executed and delivered by the respective parties thereto, in substantially the forms heretofore submitted to the effect set forth Underwriter with only such changes as shall have been agreed to by the Underwriter, and said documents shall not have been amended, modified or supplemented, except as may have been agreed to by the Underwriter, and there shall have been taken in Exhibit A.connection therewith, with the execution and delivery of the Certificates and with the transactions contemplated thereby and by this Purchase Agreement, all such actions as Special Counsel, shall deem to be necessary and appropriate;
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor District contained in this Purchase Agreement are true shall be true, correct and correct complete in all material respects on the date hereof and as of on the Closing Date with the same effect Date, as if made again on the Closing Date, and the Depositor has complied Official Statement (as the same may be supplemented or amended with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness written approval of the Registration Statement has been issued Underwriter) shall be true, correct and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains complete in all material respects and such information shall not contain any untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein relating to the District, in light of the circumstances under which such statements were made, not misleading, or that ;
(c) Between the Prospectus, as of date hereof and the Closing Date, neither the market price nor marketability, or the ability of the Underwriter to enforce contracts for the sale of the Certificates, at the initial offering prices set forth in Exhibit A hereto and in the Official Statement, of the Certificates shall have been materially adversely affected, in the judgment of the Underwriter, by reason of any of the following:
(1) legislation enacted or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court established under Article III of the Constitution of the United States or by the United States Tax Court, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made:
(i) by or on behalf of the United States Treasury Department or by or on behalf of the Internal Revenue Service, with the purpose or effect, directly or indirectly, of causing inclusion in gross income for purposes of federal income taxation of the interest received by the owners of the Certificates; or
(ii) by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction over the subject matter thereof, to the effect that the Certificates, or obligations of the general character of the Certificates, including any and all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended;
(2) legislation enacted by the State legislature or a decision rendered by a State Court, or a ruling, order, or regulation (final or temporary) made by a State authority, which would have the effect of changing, directly or indirectly, the State tax consequences of interest on obligations of the general character of the Certificates in the hands of the holders thereof;
(3) there shall have occurred (i) an outbreak or escalation of hostilities or the declaration by the United States of a national emergency or war or (ii) any other calamity or crisis in the financial markets of the United States or elsewhere or the escalation of such calamity or crisis;
(4) a general suspension of trading on the New York Stock Exchange or other major exchange shall be in force, or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on any such exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction;
(5) the declaration of a general banking moratorium by federal, New York or California authorities;
(6) the imposition by the New York Stock Exchange, other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Certificates, or obligations of the general character of the Certificates, or securities generally, or the material increase of any such restrictions now in force;
(7) an order, decree or injunction of any court of competent jurisdiction, or order, filing, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Certificates, or the issuance, offering or sale of the Certificates, as contemplated hereby or by the Official Statement, is or would be in violation of the federal securities laws, as amended and then in effect;
(8) the withdrawal or downgrading or placement on credit watch of any underlying rating of the District's outstanding indebtedness by a national rating agency;
(9) any event occurring, or information becoming known which makes untrue in any material adverse respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading;
(10) any fact or event shall exist or have existed that, in the Underwriter’s judgment, requires or has required an amendment of or supplement to the Official Statement;
(11) any state Blue Sky or securities commission, or other governmental agency or body, shall have withheld registration, exemption or clearance of the offering of the Certificates as described herein, or issued a stop order or similar ruling relating thereto;
(12) any amendment shall have been made to the federal or State Constitution or action by any federal or State court, legislative body, regulatory body, or other authority materially adversely affecting the tax status of the District, its property, income securities (or interest thereon) or the ability of the District to budget and appropriate funds for the Lease Payments in order to provide for the payment of the principal and interest represented by the Certificates; or
(13) the purchase of and payment for the Certificates by the Underwriter, or the resale of the Certificates by the Underwriter, on the terms and conditions herein provided shall be prohibited by any applicable law, governmental authority, board or agency or commission.
(cd) Deloitte & Touche LLP will have furnished At or prior to the Underwriter a letter, dated as of the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance satisfactory to the Underwriter:
(1) the Official Statement and each Certificate Document, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to by the Underwriter;
(2) an unqualified approving opinion, dated the Closing Date and addressed to the District, of Special Counsel, in substantially the form attached to the Official Statement as Appendix D, and a letter of such counsel, dated the Closing Date and addressed to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as opinion may be relied upon by the Underwriter to the same extent as of such opinion were addressed to it;
(3) the supplemental opinion, dated the Closing Date and addressed to the Underwriter, of Special Counsel, substantially to the effect that (i) this Purchase Agreement and the Certificate Documents to which the District is a party have been duly authorized, executed and delivered by the District and are valid and binding agreements of the District enforceable in accordance with their respective terms, except as enforcement thereof may reasonably request be limited by bankruptcy, insolvency, moratorium and other laws affecting the enforcement of an accountingcreditors’ rights, financial or statistical nature set forth by the application of equitable principles if equitable remedies are sought, by the exercise of judicial discretion in appropriate cases and by the limitations on legal remedies against public agencies in the Definitive Free Writing Prospectus State of California, (ii) the Certificates are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Prospectus Supplement Trust Agreement is exempt from qualification under the caption Trust Indenture Act of 1939, as amended, and (iii) the statements contained in the Official Statement under the captions “The Initial Mortgage LoansINTRODUCTION,” “THE CERTIFICATES,” “SECURITY AND SOURCES OF PAYMENT FOR THE CERTIFICATES” and elsewhere therein agrees with the accounting records “TAX MATTERS” and in Appendix A thereto, insofar as such statements purport to summarize certain provisions of the Depositor and, where applicableCertificates, the Mortgage Loan files of Certificate Documents and Special Counsel’s opinion concerning certain tax matters relating to the DepositorCertificates, excluding any questions of legal interpretation.are accurate in all material respects;
(d4) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division letter of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. A Professional Law Corporation, Disclosure Counsel, dated the Closing Date and addressed to the District and the Underwriter, to the effect that, without having undertaken to determine independently the accuracy or completeness of the statements contained in the Preliminary Official Statement and the final Official Statement, but on the basis of their participation in conferences with representatives of the District, the Underwriter and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Preliminary Official Statement as of its date, and the final Official Statement as of its date and as of the Closing Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (“Moody’s”except that no opinion or belief need be expressed as to any financial or statistical data, or information concerning DTC and the book-entry only system contained in the Preliminary Official Statement or the final Official Statement). The Class M-1 ;
(5) a certificate of the Trustee dated the Closing Date, signed by a duly authorized officer of the Trustee, to the effect that (i) the Trustee is a national banking association organized and existing under and by virtue of the laws of the United States of America, having the full power and being qualified to enter into and perform its duties under the Trust Agreement and the Assignment Agreement and to execute and deliver the Certificates shall to the Underwriter pursuant to the Trust Agreement, (ii) when delivered to and paid for by the Underwriter on the Closing Date, the Certificates will have been rated “AA+” duly executed and delivered by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.the Trustee,
Appears in 1 contract
Sources: Certificate Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Securities shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company and the Selling Stockholder contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Depositor Company and the Selling Stockholder made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and 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 threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel for the Company, to have furnished to the Underwriter their opinion or opinions and letter, dated the Closing Date and addressed to the Underwriter substantially in the form of Exhibit A to this agreement.
(c) The Underwriter shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP LLP, counsel for the Underwriter, such opinion and letter, dated the Closing Date and addressed to the Underwriter, with respect to the sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they request for the Underwriter opinions, dated the Closing Date, substantially purpose of enabling them to the effect set forth in Exhibit A.pass upon such matters.
(bd) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by both the President, Senior Vice President Company’s general counsel and either the chief financial officer or any Vice Presidentprincipal accounting officer, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement Statement, the Final Prospectus, any supplements to the Final Prospectus and the Prospectus this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on and as of the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included or incorporated by reference in the Final Prospectus (exclusive of any supplement thereto), there has come been no material adverse change in the condition, financial or otherwise, or in the earnings, business or operations, whether or not arising from transactions in the ordinary course of business, of the Company and its subsidiaries, considered as one entity, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(e) [intentionally omitted]
(f) Subsequent to his attention that would lead him to believe that the Execution Time or, if earlier, the dates as of which information is given in the Registration StatementStatement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto), any change, or any development, in or affecting the condition (financial or otherwise), earnings, business or operations of the Closing DateCompany and its subsidiaries, contains considered as one entity, whether or not arising from transactions in the ordinary course of business, the effect of which, in any untrue statement of a material fact or omits case referred to state any material fact required to be stated therein or necessary to make the statements therein not misleadingabove, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements thereinis, in the light judgment of the circumstances under which they were madeUnderwriter, not misleadingso material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto).
(cg) Deloitte & Touche LLP will The Selling Stockholder shall have furnished to the Underwriter a lettercertificate of the Selling Stockholder signed by an authorized representative of the Selling Stockholder, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they the representations and warranties of the Selling Stockholder in this Agreement are true and correct on and as of the Closing Date with the same force and effect as if made on and as of the Closing Date and the Selling Stockholder has complied with all the agreements and satisfied all the conditions to be performed or satisfied by the Selling Stockholder under this Agreement at or prior to the Closing Date;
(h) Prior to the Closing Date, the Company shall have performed certain specified procedures as a result of which they have determined that furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationrequest.
(di) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4Subsequent to the Execution Time, Class A-1, Class A-2 and Class A-3 Certificates there shall not have been rated any decrease in the rating of any of the Company’s debt securities by any “AAAnationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by Standard & Poor’s, a division the Underwriter. Notice of such cancelation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇▇ Investors Service& ▇▇▇▇▇▇▇▇ LLP, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&Pcounsel for the Underwriter, “AA+” by Fitchat ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P▇▇▇ ▇▇▇▇, “AA+” by Fitch▇▇▇ ▇▇▇▇ ▇▇▇▇▇, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Offered Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof 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 Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) The Underwriter shall have received from PricewaterhouseCoopers LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Date, updating the letter referred to in clause (i) above, 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 Offered Certificates shall have been duly taken and made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the knowledge of the Company or the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company, the Servicer or the Master Servicer which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Offered Certificates; (ii) any downgrading in the rating of the Servicer or the Master Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of the Servicer or the Master Servicer (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, North Carolina or New York 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 Underwriter, 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 Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of an executive officer of the Company in which such officer shall state that, to the best of such officer's knowledge after reasonable inspection, (i) the representations and warranties of the Company contained in the Basic Documents are true and correct with the same force and effect as if made on the Closing Date and (ii) 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.
(e) The Underwriter shall have received an opinion of counsel to the Trustee, dated the Closing Date, in form and substance satisfactory to the Underwriter and its counsel.
(f) [Reserved]
(g) [Reserved]
(h) The Underwriter shall have received an opinion of [▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & Sutcliffe LLP][Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished LLP][▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP], special counsel to the Underwriter opinionsCompany and BANA, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished form and substance satisfactory to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:its counsel.
(i) The representations Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and warranties of addressed to the Depositor in this Agreement are true and correct in all material respects on and as of Underwriter or accompanied by reliance letters addressed to the Underwriter.
(j) The Underwriter shall have received from [▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & Sutcliffe LLP][Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP][▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP], special counsel for the Underwriter, a letter dated the Closing Date with respect to the same Final Prospectus, substantially to the effect that nothing has come to such counsel's attention in the course of its review of the Final Prospectus which causes it to believe that the Final Prospectus, as if made on of the date of the Prospectus Supplement or the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains contained any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(ck) Deloitte & Touche LLP will The Underwriter shall have furnished received an opinion of counsel to the Underwriter a letterMaster Servicer and Securities Administrator, dated as of the Closing Date, in form and substance satisfactory to the Underwriter and its counsel.
(l) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(m) At the Closing Date, the Certificates and the Pooling Agreement will conform in all material respects to the 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, in the opinion of counsel to the Underwriter, 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 effect authorization, form and validity of this Agreement, the Pooling Agreement, the Mortgage Loan Purchase Agreement, the Certificates, 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 have performed certain specified procedures as a result may reasonably request to enable them to pass upon such matters. The Company will provide or cause to be provided to the Underwriter such conformed copies of which they have determined that such information opinions, certificates, letters and documents as the Underwriter may reasonably request of an accountingrequest. All opinions, financial letters, evidence and certificates mentioned above or statistical nature set forth elsewhere in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees this Agreement shall be deemed to be in compliance with the accounting records of provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding Underwriter. If any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates condition specified in this Section 6 shall not have been rated “AAA” fulfilled when and as required to be fulfilled, this Agreement may be terminated by Standard & Poor’sthe Underwriter by notice to the Company at any time at or prior to the Closing Date, a division and such termination shall be without liability of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.any party to any other party except as provided in Section 7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Funding Corp)
Conditions to the Obligations of the Underwriter. The obligations of ------------------------------------------------ the Underwriter to purchase the Offered Certificates of any Series shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Depositor Company contained herein in this Agreement, as supplemented by the related Terms Agreement, as of the date hereof respective dates thereof and the related Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ applicable officers' certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder under this Agreement and such Terms Agreement and to the following additional conditionsconditions applicable to the related Certificate Offering:
(a) ▇▇▇▇▇▇▇ ▇No stop order suspending the effectiveness of the related Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP L.L.P, counsel for the Company, shall have furnished to the Underwriter opinionsan opinion, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the related Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations this Agreement and warranties the related Terms Agreement have been duly executed and delivered by the Company under the law of the Depositor in this Agreement are true and correct in all material respects on and as State of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing DateNew York;
(ii) No stop order suspending the effectiveness related Pooling and Servicing Agreement has been duly executed and delivered by the Company under the law of the Registration Statement has been issued State of New York and no proceedings for that purpose have been instituted oris a legal, to his knowledge, threatened; andvalid and binding agreement of the Company enforceable against the Company in accordance with its terms;
(iii) Nothing has come the Offered Certificates, when duly executed and countersigned by the Trustee in accordance with the related Pooling and Servicing Agreement, will be validly issued and outstanding and entitled to his attention that would lead him the benefits of such Pooling and Servicing Agreement;
(iv) the related Pooling and Servicing Agreement is not required to believe be qualified under the Trust Indenture Act of 1939, as amended, and the trust created thereunder is not required to be registered under the Investment Company Act of 1940, as amended;
(v) such counsel confirms that the related Registration StatementStatement is effective under the Act and, to the best of such counsel's knowledge, no stop order with respect thereto has been issued, and no proceeding for that purpose has been instituted or threatened by the Commission; such Registration Statement (except the financial statements and schedules and other financial and statistical data included therein and the documents incorporated by reference therein, as to which such counsel need express no view), at the time it became effective and the related Prospectus (except the financial statements and schedules, the other financial and statistical data included therein and the documents incorporated by reference therein), as of the Closing Datedate of the Prospectus Supplement conformed in all material respects to the requirements of the Act and the rules and regulations thereunder; and no information has come to the attention of such counsel that causes it to believe that (A) such Registration Statement (except the financial statements and schedules and the other financial and statistical data included therein and the documents incorporated by reference therein, contains any as to which such counsel need express no view) at the time it became effective, contained an untrue statement of a material fact or omits omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading, misleading or that (B) such Prospectus or any amendment or supplement thereto (except the Prospectusfinancial statements and schedules and the other financial and statistical data included therein), as of the date of the Prospectus Supplement, or at the related Closing Date, contained or contains any an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(vi) the statements set forth under the heading "Description of the Certificates" in the related Prospectus, insofar as such statements purport to summarize certain provisions of the related Pooling and Servicing Agreement and the related Offered Certificates, provide a fair summary of such provisions;
(vii) the statements set forth in the related Prospectus under the headings "Certain Legal Aspects of the Mortgage Loans", "Material Federal Income Tax Consequences" (insofar as they relate specifically to the purchase, ownership and disposition of the related Offered Certificates) and "ERISA Considerations" (insofar as they relate specifically to the purchase, ownership and disposition of such Offered Certificates), to the extent that they constitute matters of law or legal conclusions, provide a fair summary of such law or conclusions;
(viii) assuming compliance with all provisions of the related Pooling and Servicing Agreement, for federal income tax purposes, (A) if any election is made to treat the assets of the Trust Fund as a REMIC: the related Trust Fund (and any specified subgrouping therein) will qualify as a REMIC pursuant to Section 860D of the Internal Revenue Code of 1986, as amended (the "Code"), each Class of Certificates of the related Series, other than the related Residual Class or Classes, will constitute a class of "regular interests" in the related REMIC within the meaning of the Code, and each Class of such Certificates specified in the related Prospectus as a Class of Residual Certificates will constitute the "residual interest" in the related REMIC within the meaning of the Code; (B) if no such REMIC election is made: the Trust Fund will be treated as a "grantor trust"; and
(ix) assuming that some or all of the Offered Certificates of the related Series shall be rated at the time of issuance in one of the two highest rating categories by a nationally recognized statistical rating organization, each Offered Certificate so rated will be at the time of issuance, a "mortgage related security" as such term is defined in Section 3(a)(41) of the Exchange Act. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by, officers of the parties to this Agreement, the related Terms Agreement or the related Pooling and Servicing Agreement. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Company. Such opinion may be qualified, insofar as it concerns the enforceability of the documents referred to therein, to the extent that such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law). Such opinion may be further qualified as expressing no opinion as to (x) the statements in the related Prospectus under the heading "Certain Legal Aspects of the Mortgage Loans" except insofar as such statements relate to the laws of the State of New York and the laws of the United States, and (y) the statements in such Prospectus under the headings "ERISA Considerations" and "Material Federal Income Tax Consequences" except insofar as such statements relate to the laws of the United States. In addition, such opinion may be qualified as an opinion only on the law of the States of New York and Texas and the federal law of the United States of America.
(c) Deloitte ▇▇▇▇▇▇▇ & Touche LLP ▇▇▇▇▇, L.L.P., counsel for the Company, shall have furnished to the Underwriter an opinion, dated the related Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power to own its properties, to conduct its business as described in the related Prospectus and to enter into and perform its obligations under this Agreement, the related Terms Agreement, the related Pooling and Servicing Agreement and the Certificates of the related Series;
(ii) The Company has full power and authority to sell the related Mortgage Loans as contemplated herein and in the related Pooling and Servicing Agreement;
(iii) This Agreement, the related Terms Agreement and the related Pooling and Servicing Agreement have been duly authorized, executed and delivered by the Company under the law of the State of Delaware;
(iv) The issuance and sale of the Offered Certificates have been duly authorized by the Company;
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated herein or in the related Pooling and Servicing Agreement, except such as may be required under the blue sky laws of any jurisdiction and such other approvals as have been obtained;
(vi) Neither the issuance of the Certificates of the related Series nor delivery of the related Offered Certificates, nor the consummation of any other of the transactions contemplated in this Agreement, the related Terms Agreement or the related Pooling and Servicing Agreement, nor the fulfillment of the terms of the related Certificates, the related Pooling and Servicing Agreement, this Agreement or the related Terms Agreement will conflict with or violate any term or provision of the articles of incorporation or by-laws of the Company or any statute, order or regulation applicable to the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company and will not conflict with, result in a breach or violation or the acceleration of or constitute a default under the terms of any indenture or other agreement or instrument known to such counsel to which the Company is a party or by which it is bound; and
(vii) There are no actions, proceedings or investigations pending or, to the best knowledge of such counsel, threatened before any court, administrative agency or other tribunal (i) asserting the invalidity of this Agreement, the related Terms Agreement, the related Pooling and Servicing Agreement or the related Certificates, (ii) seeking to prevent the issuance of the Certificates of the related Series or the consummation by the Company of any of the transactions contemplated by this Agreement, such Terms Agreement or such Pooling and Servicing Agreement, or (iii) which might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, this Agreement, such Terms Agreement, such Pooling and Servicing Agreement or the related Certificates. In rendering his or her opinion such counsel may rely as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the Company or public officials. In addition, such opinion may be qualified as an opinion only on the general corporation laws of the State of Delaware.
(d) In-house counsel for First Horizon Home Loan Corporation (or its ultimate parent) shall have furnished to the Underwriter an opinion, dated the related Closing Date, to the effect that:
(i) First Horizon Home Loan Corporation has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with corporate power to own its properties, to conduct its business as described in the related Prospectus and to enter into and perform its obligations under this Agreement, the related Terms Agreement, the related Pooling and Servicing Agreement and the Certificates of the related Series;
(ii) First Horizon Home Loan Corporation has full power and authority to sell and master service the related Mortgage Loans as contemplated herein and in the related Pooling and Servicing Agreement;
(iii) This Agreement, the related Terms Agreement and the related Pooling and Servicing Agreement have been duly authorized, executed and delivered by First Horizon Home Loan Corporation under the law of the State of Kansas;
(iv) The issuance and sale of the Offered Certificates have been duly authorized by First Horizon Home Loan Corporation;
(v) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation by First Horizon Home Loan Corporation of the transactions contemplated herein or in the related Pooling and Servicing Agreement, except such as may be required under the blue sky laws of any jurisdiction and such other approvals as have been obtained;
(vi) Neither the issuance of the Certificates of the related Series nor delivery of the related Offered Certificates, nor the consummation of any other of the transactions contemplated in this Agreement, the related Terms Agreement or the related Pooling and Servicing Agreement, nor the fulfillment of the terms of the related Certificates, the related Pooling and Servicing Agreement, this Agreement or the related Terms Agreement will conflict with or violate any term or provision of the articles of incorporation or by-laws of First Horizon Home Loan Corporation or any statute, order or regulation applicable to First Horizon Home Loan Corporation of any court, regulatory body, administrative agency or governmental body having jurisdiction over First Horizon Home Loan Corporation and will not conflict with, result in a breach or violation or the acceleration of or constitute a default under the terms of any indenture or other agreement or instrument known to such counsel to which First Horizon Home Loan Corporation is a party or by which it is bound, other than such conflicts, breaches and violations or defaults which, individually or on a cumulative basis, would not have a material adverse effect on First Horizon Home Loan Corporation and its subsidiaries, taken as a whole, or on the issuance and sale of the Certificates or the consummation of the transactions contemplated hereby; and; and
(vii) There are no actions, proceedings or investigations pending or, to the best knowledge of such counsel, threatened before any court, administrative agency or other tribunal (i) asserting the invalidity of this Agreement, the related Terms Agreement, the related Pooling and Servicing Agreement or the related Certificates, (ii) seeking to prevent the issuance of the Certificates of the related Series or the consummation by First Horizon Home Loan Corporation of any of the transactions contemplated by this Agreement, such Terms Agreement or such Pooling and Servicing Agreement, or (iii) which might materially and adversely affect the performance by First Horizon Home Loan Corporation of its obligations under, or the validity or enforceability of, this Agreement, such Terms Agreement, such Pooling and Servicing Agreement or the related Certificates. In rendering his or her opinion such counsel may rely as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of First Horizon Home Loan Corporation or public officials. In addition, such opinion may be qualified as an opinion only on the laws of the State of Kansas.
(e) The Underwriter shall have received from ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated the related Closing Date, with respect to the issuance and sale of the Certificates of the related Series, the related Registration Statement, the related Prospectus and such other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as the Underwriter may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Underwriter a lettercertificate of the Company, signed by the President or any Vice President or the principal financial or accounting officer of the Company, dated as of the related Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they the signers of such certificate have performed certain specified procedures as a result of which they have determined that such information as carefully examined the Underwriter may reasonably request of an accountingrelated Registration Statement (excluding any Current Reports and any other documents incorporated by reference therein), financial or statistical nature set forth in the Definitive Free Writing Prospectus related Prospectus, any Detailed Description (excluding any related Current Report), this Agreement and the Prospectus Supplement under related Terms Agreement and that:
(i) the caption “The Initial Mortgage Loans” representations and elsewhere therein agrees with the accounting records warranties of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.Company in this Agreement
Appears in 1 contract
Sources: Underwriting Agreement (First Horizon Asset Securities Inc)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Depositor Issuer and the Borrower contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor Issuer, the Bank, and the Borrower made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor Issuer and the Borrower of its their respective obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇At the Closing Date, the Indenture, the Letter of Representations, the Loan Agreement, the Notes, the Mortgage, the Reimbursement Agreement and the Letter of Credit shall have been duly authorized, executed and delivered by the respective parties thereto, and the Official Statement shall have been delivered to the Underwriter, and none of the foregoing agreements shall have been amended, modified or supplemented so as to materially affect the content thereof, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the issuance of the Series 1996 Bonds, and with the transactions contemplated thereby and by this Agreement, all such actions as ▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished ▇▇▇▇, counsel to the Underwriter opinions("Underwriter's Counsel"), dated reasonably shall deem to be necessary and appropriate;
(b) At the Closing Date, substantially the Official Statement shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the effect set forth in Exhibit A.Underwriter;
(bc) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at At or prior to the Closing Date;
(ii) No stop order suspending , no event shall have occurred or information become known which, in the effectiveness reasonable judgment of the Registration Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement or has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe the effect that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(cd) Deloitte & Touche LLP will At or prior to the Closing Date, the Underwriter shall have furnished received an original or copies, where appropriate, of the following documents, in each case satisfactory in form and substance to the Underwriter a letterand in each case conforming in all material respects with any description thereof contained in the Official Statement:
(i) The Indenture, the Letter of Representations, the Loan Agreement, the Series 1996 Bonds, the Reimbursement Agreement, the Letter of Credit, the Mortgage, the Remarketing Agreement and the Notes, each duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(ii) The opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Borrower, dated as of the Closing Date, in substantially the form and substance satisfactory attached hereto as Exhibit A;
(iii) The opinion of Seyfarth, Shaw, ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel to the UnderwriterBank, to dated the effect that they have performed certain specified procedures Closing Date, in substantially the form attached hereto as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.Exhibit B;
(div) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4opinions of Ice ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’, ▇▇▇▇▇ Investors Serviceand ▇▇▇▇▇▇▇▇, Inc. Co-Bond Counsel, dated the Closing Date, in substantially the form attached hereto as Exhibit C;
(“Moody’s”). v) The Class M-1 Certificates shall have been rated “AA+” opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, Underwriter's Counsel, dated the Closing Date, in substantially the form attached hereto as Exhibit D;
(vi) A certificate, dated the Closing Date, signed by S&Pa duly authorized officer of the Bank, “AA+” in substantially the form attached hereto as Exhibit E;
(vii) A certificate, dated the Closing Date, signed by Fitcha duly authorized official of the Issuer, “AA in form satisfactory to the Underwriter and the Underwriter's Counsel, to the effect that the representations and warranties of the Issuer set forth in Section 4 hereof are true, correct and complete on the date thereof;
(high)” viii) A certificate, dated the Closing Date, signed by DBRS a duly authorized officer of the general partner of the Borrower, in form satisfactory to the Underwriter and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&Pthe Underwriter's Counsel, “AA+” by Fitchto the effect that the representations and warranties of the Borrower set forth in Section 5 hereof are true, “AA” by DBRS correct and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.complete on the date thereof;
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Offered Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof 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 Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP The Underwriter shall have furnished received from Deloitte & Touche LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter opinionsand counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Date, substantially updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the effect set forth in Exhibit A.Underwriter and counsel for the Underwriter.
(b) The Depositor 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 Offered Certificates shall have furnished been duly taken and made. At and prior to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to no stop order suspending the effect that the signer effectiveness of such certificate has carefully examined the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the Prospectus knowledge of the Company or the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and that:
delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company, any Servicer or the Master Servicer which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Offered Certificates; (ii) any downgrading in the ratings of the securities of any Servicer or the Master Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its ratings of any securities of any Servicer or the Master Servicer (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, North Carolina or New York 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 Underwriter, 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 Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of an executive officer of the Company in which such officer shall state that, to the best of such officer's knowledge after reasonable inspection, (i) the representations and warranties of the Depositor Company contained in this Agreement the Basic Documents are true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, Date and (ii) the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(iie) No stop order suspending The Underwriter shall have received an opinion of reasonably acceptable counsel to the effectiveness Master Servicer and the Securities Administrator, dated the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(f) The Underwriter shall have received an opinion of Hunton & Williams LLP, special counsel to the Company and Bank of America, Nat▇▇▇▇▇ Association, dated the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(h) The Underwriter shall have received from Hunton & Williams LLP, special counsel to the Underwriter, a letter addr▇▇▇▇▇ ▇▇ the Underwriter dated the Closing Date with respect to the Final Prospectus, substantially to the effect that no facts have come to such counsel's attention in the course of its review of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him Final Prospectus which causes it to believe that the Registration StatementFinal Prospectus, as of the date of the Prospectus Supplement or the Closing Date, contains contained any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(ci) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(j) At the Closing Date, the Certificates and the Pooling and Servicing Agreement will conform in form all material respects to the descriptions thereof contained in the Final Prospectus.
(k) The Underwriter shall not have discovered and substance satisfactory 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 counsel to the Underwriter, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(l) All corporate proceedings and other legal matters relating to the effect authorization, form and validity of this Agreement, the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement, the Certificates, 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.
(m) The Underwriter shall have performed certain specified procedures received a certificate (upon which Hunton & Williams LLP shall be entitled to rely in rendering its opinions ▇▇▇ ▇▇tters under the Basic Documents) dated the Closing Date of an officer of the Custodian in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) the Custodian is not an affiliate of any other entity listed as a result transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to the Custodian (the "Custodian Disclosure") includes (a) the Custodian's correct name and form of organization and (b) a discussion of the Custodian's procedures for safekeeping and preservation of the mortgage loans; and (iii) the Custodian Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Custodian Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading.
(n) The Underwriter shall have received a certificate (upon which they Hunton & Williams LLP shall be entitled to rely in rendering its opinions ▇▇▇ ▇▇tters under the Basic Documents) dated the Closing Date of an officer of the Trustee in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) the Trustee is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement (ii) the information in the Prospectus Supplement related to the Trustee (the "Trustee Disclosure") includes (a) the Trustee's correct name and form of organization and (b) a discussion of the Trustee's experience serving as trustee for asset-backed securities transactions involving mortgage loans; and (iii) the Trustee Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Trustee Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading.
(o) The Underwriter shall have determined received a certificate (upon which Hunton & Williams LLP shall be entitled to rely in rendering its opinions ▇▇▇ ▇▇tters under the Basic Documents) dated the Closing Date of an officer of American Home Mortgage Corp. and Wells Fargo Bank, N.A. (each a "Significant Originator" and ▇▇▇▇▇her the "Significant Originators") in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) such Significant Originator is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to such Significant Originator (the "Originator Disclosure") includes such Significant Originator's correct name, form of organization and length of time originating mortgage loans; (iii) the description of such Significant Originator's origination program includes (a) experience in originating mortgage loans, (b) size and composition of such Significant Originator's origination portfolio, and (c) such Significant Originator's credit-granting or underwriting criteria for the mortgage loans; (iv) except as set forth in the Originator Disclosure, no additional information regarding such Significant Originator's origination program could have a material adverse affect in the performance of the pool assets or the Offered Certificates; and (v) such Originator Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Originator Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading. The requirement to provide a certificate pursuant to the preceding sentence shall be deemed satisfied if such Significant Originator represents and warrants that the Originator Disclosure satisfies the relevant provisions of Regulation AB under the Act.
(p) The Underwriter shall have received a certificate (upon which Hunton & Williams LLP shall be entitled to rely in rendering its opinions ▇▇▇ ▇▇tters under the Basic Documents) dated the Closing Date of an officer of Wells Fargo Bank, N.A. (the "Significant Servicer") and the Mast▇▇ Servicer in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) the Significant Servicer or Master Servicer is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to the Significant Servicer or Master Servicer (the "Servicer Disclosure") includes (a) the Significant Servicer's or Master Servicer's correct name and form of organization, (b) the correct length of time that the Significant Servicer or Master Servicer has been servicing mortgage loans; and (c) a discussion of the Significant Servicer's or Master Servicer's experience in servicing mortgage loans; (iii) except as set forth in the Servicer Disclosure, (a) there are no other servicers responsible for calculating or making distributions to the holders of the Offered Certificates, performing work-outs or foreclosures, or any other material aspect of servicing the mortgage loans, (b) there have been no material changes to the Significant Servicer's or Master Servicer's servicing policies and procedures during the last three years, (c) no additional information regarding the Significant Servicer's or Master Servicer's financial condition could have a material affect on performance of the Offered Certificates, (d) no commingling of funds on deposit in collection accounts will be permitted by the Significant Servicer or Master Servicer, (e) no additional information with respect to any special or unique factors involved in servicing the mortgage loans could have a material affect on performance of the Offered Certificates, and (f) no additional information with respect to the Significant Servicer's or Master Servicer's process for handling delinquencies, losses, bankruptcies and recoveries could have a material affect on performance of the Offered Certificates; (iv) for any Significant Servicer or Master Servicer identified in the Prospectus Supplement as responsible for calculating or making distributions to the holders of the Offered Certificates, performing work-outs or foreclosures, or any other material aspect of servicing the mortgage loans, the certifications in clauses (ii) and (iii) above are made with respect to the Significant Servicer or Master Servicer; and (v) the Servicer Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Servicer Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading. The requirement to provide a certificate pursuant to the preceding sentence shall be deemed satisfied if the Significant Servicer or Master Servicer represents and warrants that the Servicer Disclosure satisfies the relevant provisions of Regulation AB under the Act. The Company will provide or cause to be provided to the Underwriter such conformed copies of such opinions, certificates, letters and documents as the Underwriter may reasonably request of an accountingrequest. All opinions, financial letters, evidence and certificates mentioned above or statistical nature set forth elsewhere in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees this Agreement shall be deemed to be in compliance with the accounting records of provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding Underwriter. If any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates condition specified in this Section 6 shall not have been rated “AAA” fulfilled when and as required to be fulfilled, this Agreement may be terminated by Standard & Poor’sthe Underwriter by notice to the Company at any time at or prior to the Closing Date, a division and such termination shall be without liability of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.any party to any other party except as provided in Section 7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Funding 2007-1 Trust)
Conditions to the Obligations of the Underwriter. The Your ------------------------------------------------ obligations of the Underwriter to purchase and pay for the Certificates Notes on the Closing Date shall be subject to the accuracy in all respects accuracy, as of the date hereof and as of the Closing Date, of the representations and warranties on the part of the Depositor contained Company herein as of the date hereof and the Closing Dateset forth, to the accuracy of the statements Statements of the Depositor Company officers made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder hereunder, and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP The Registration Statement shall have furnished become effective not later than 5:30 P.M., Milwaukee, Wisconsin time, on the date of this Agreement, or such later date or time as shall have been consented to the Underwriter opinionsin writing by you, dated and prior to the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending, or, to his knowledgethe knowledge of the Company after due inquiry of the Commission, threatenedor you, shall be contemplated by the Commission;
(ii) trading in securities on the New York Stock Exchange shall not have been suspended and minimum or maximum prices shall not have been established on such Exchange;
(iii) no banking moratorium shall have been declared by Iowa, Illinois, New York, Wisconsin or United States authorities;
(iv) the United States shall not have become engaged in hostilities which have resulted in a declaration of a national emergency or declaration of war and which, in your judgment, render it inadvisable to proceed with the public offering or the delivery of the Notes; and
(v) neither the Company nor any of its subsidiaries shall have sustained since March 31, 1996, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree; since the respective dates as of which information is given in the Prospectus there shall not have been any change in the Capital Stock or debt of the Company or the Bank or a change, or a development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company, the Bank or any other subsidiary otherwise than as set forth and described in the Prospectus; and operating, political, international, economic or market conditions shall not exist, as of the date hereof or as the Closing Date, the effect of which, in any case described in this clause (a), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering of the Notes at 100% of the principal amount thereof.
(b) The Notes shall have been qualified or registered for sale under the state securities or blue sky laws of such jurisdictions as shall have been specified by you prior to the date hereof;
(c) You shall not have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which, in the opinion of your legal counsel is material, or omits to state a fact which, in the opinion of such legal counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading;
(d) Prior to the effective date of the Registration Statement and prior to the Closing Date you shall have received an opinion or opinions of Winthrop & Weinstine, P.A., as counsel for the Company, dated as of the effective date and the Closing Date, respectively, in form satisfactory to you and your legal counsel, to the effect contained in paragraphs (a), (f) (provided, however, that the opinion of such counsel with respect to paragraph (f) of Section 2 hereof shall be limited solely to the status of title of the Company's banking facility located at 230-18th Street, Rock Island, Illinois), (g), (h) and (i) of Section 2 hereof (in each of these respective paragraphs where the Company has qualified its representations and warranties to the best of its knowledge, such counsel may do the same, and with respect to paragraphs (h) and (i) of Section 2 hereof, such counsel may qualify its opinion, to the extent acceptable to you and your legal counsel, to the best of its knowledge after due inquiry of each of the current directors of the Company) and further to the effect that:
(i) the Company is duly registered under the Bank Holding Company Act and is in compliance in all material respects with the provisions thereof and the rules and regulations thereunder, and, the Company and each subsidiary thereof are in compliance with, and conduct their respective businesses in conformity with, all other applicable laws and governmental regulations of jurisdictions to which they are subject; provided, however, that no opinion need be expressed by such counsel as to whether the Company and each subsidiary thereof are in compliance with, and conduct their respective businesses in conformity with, all applicable laws and governmental regulations governing the making and enforceability of any loan made by the Company or any of its subsidiaries to third parties;
(ii) the Company has full power and authority to enter into and perform this Agreement and the Indenture and to issue and sell the Notes hereunder and this Agreement and the performance of the Company's obligations hereunder have been duly authorized by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company and is a validly and legally enforceable binding obligation of the Company except to the extent that rights to indemnification may be limited by public policy and under the federal securities laws or by any orders, rules and regulations thereunder, and by order of any court;
(iii) Nothing the Notes have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally enforceable binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights; the terms of the Notes and the Indenture substantially conform to the descriptions thereof in the Prospectus;
(iv) the Indenture has come been duly authorized, executed and delivered by the Company, and (assuming that the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and legally enforceable binding instrument of the Company enforceable against the Company in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to his attention or affecting the enforcement of creditors' rights and except to the extent that would lead him rights to indemnification may be limited by public policy and under the federal securities laws or by any orders, rules and regulations thereunder, and by any order of any court;
(v) all taxes and fees required to be paid with respect to the execution of the Indenture and the issuance of the Notes have been paid; and there is no need to file or record the Indenture with any governmental authority except in connection with compliance with federal and state securities laws;
(vi) all of the issued shares of capital stock of the Company as set forth in the Prospectus have been duly and validly authorized and issued and are fully paid and nonassessable and conform to the description thereof contained in the Prospectus; and, except to the extent described in the Prospectus, all outstanding shares of stock of each subsidiary of the Company are owned by the Company or another subsidiary of the Company, have been duly and validly authorized and issued, are fully paid and nonassessable, and except to the extent described in the Prospectus, including the financial statements and notes thereto, the shares of stock of each subsidiary owned by the Company or a subsidiary thereof are held free and clear of liens and encumbrances;
(vii) the Registration Statement has become effective under the Act and the Commission has not issued an order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the effectiveness of the Registration Statement, and to the best of such counsel's knowledge after due inquiry of the Commission, no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement, the Prospectus and each amendment and supplement thereto made by the Company prior to the Closing Date (other than the financial statements and related schedules thereto, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act, the Rules and Regulations, the Trust Indenture Act and the rules and regulations thereunder; the descriptions in each Preliminary Prospectus and in the Prospectus of statutes, legal proceedings, contracts and other documents are accurate in all material respects and present fairly the information contained therein; such counsel has no reason to believe that the Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto as of the Closing Date, date of such opinion contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading (other than financial statements and related schedules thereto, as to which such counsel need express no opinion); and such counsel does not know, after due inquiry and investigation, of any contracts, leases, agreements or other documents, or that the Prospectus, as of the Closing Date, contains any untrue statement transactions or relationships of a material fact or omits to state a material fact character required to be stated therein filed as an exhibit to the Registration Statement or necessary required to make the statements therein, be described in the light Registration Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement thereto which are not filed or described as required (no opinion need be given as to consents, approvals, authorizations, registrations or qualifications required under state securities or blue sky laws in connection with the public offering of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor Notes by you); and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Sources: Underwriting Agreement (Financial Services Corporation of the Midwest)
Conditions to the Obligations of the Underwriter. The obligations ------------------------------------------------ of the Underwriter to purchase the Certificates Securities shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company, the Operating Partnership and the Selling Stockholders contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Depositor Company, the Operating Partnership and the Selling Stockholders made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company, the Operating Partnership and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and 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 threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Assistant General Counsel and Assistant Secretary of the Company, to have furnished to the Underwriter his opinion, dated the Closing Date and addressed to the Underwriter, to the effect that:
(i) the Company is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly organized, is validly existing as a corporation, limited or general partnership or limited liability company, as the case may be, in good standing under the laws of the jurisdiction of its organization, has the power and authority to own and lease its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) the outstanding shares of the Company's Common Stock (including the Securities) and preferred stock have been duly authorized and validly issued and are fully paid and non-assessable and none of such shares was issued in violation of any preemptive or similar rights;
(iv) the outstanding Ownership Interests in each subsidiary have been duly authorized and validly issued, are fully paid and (except for general partnership interests) non-assessable; all of the outstanding limited partnership interests in the Operating Partnership are owned (except as otherwise set forth in the Prospectus) directly by the Company, all of the outstanding general partnership interests in the Operating Partnership are owned directly by the Company, and all of the Company's Ownership Interests in each of the other subsidiaries are owned directly or indirectly by the Company, in each case free and clear of all liens, encumbrances, equities or claims, except for liens created by the Pledge Agreement;
(v) this Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership;
(vi) the execution and delivery by the Company and the Operating Partnership of, and the performance by the Company and the Operating Partnership of their respective obligations under, this Agreement will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, the Credit Agreement, any Senior Note Document or, to the best of such counsel's knowledge, any other agreement or instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (B) result in a breach or violation of or default under any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries; and no consent, approval, authorization or order of, or qualification with, any Maryland or Delaware governmental body or agency having jurisdiction over the Company or the Operating Partnership is required under the laws of the State of Maryland or the Delaware Revised Uniform Limited Partnership Act (the "Partnership Act") for the offering, issuance or sale of the Securities as contemplated by this Agreement, except such as may be required by Maryland securities laws;
(vii) the statements (A) in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000 (the "2000 10-K") under the captions "Business and Properties--Environmental and Regulatory Matters," "Business and Properties--The Management Agreements," "Business and Properties--Non-competition Agreements," "Legal Proceedings," and (B) in the Company's Proxy Statement dated April 12, 2001 under the caption "Certain Relationships and Related Transactions," in each case insofar as such statements constitute summaries of legal matters, documents or proceedings, are accurate in all material respects;
(viii) to the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and that are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(ix) the Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole; and
(x) each document filed pursuant to the Exchange Act and incorporated or deemed to be incorporated by reference in the Registration Statement or the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act (except for financial statements and schedules and other financial and statistical data, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder. In passing upon compliance as to form of such documents, such counsel may assume that the statements made and incorporated by reference therein are correct and complete.
(c) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the Company and the Operating Partnership, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, to the effect as set forth in Schedule III.
(d) In addition to the opinion set forth above in Section 6(b), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, will also state that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, and representatives of the Underwriter, at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel may state that such counsel is not passing upon, and does not assume any responsibility for the accuracy, completeness or fairness of, the statements contained or incorporated by reference in the Registration Statement and the Prospectus and such counsel has not made any independent check or verification thereof (except as set forth in Section 6(b)(vii)), during the course of such participation, no facts came to such counsel's attention that have caused such counsel to believe that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of May 2, 2001 or as of the date of such opinion, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such counsel may state that they express no belief with respect to the financial statements, schedules and other financial and statistical data included or incorporated by reference in or omitted from the Registration Statement or the Prospectus. The opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. described in Sections 6(b) and 6(c) above shall state, solely in the case of those opinions of counsel which refer to subsidiaries of the Company, that all references in such opinions to "subsidiaries" of the Company include, without limitation, the Operating Partnership and the Non-Controlled Subsidiaries. In addition, the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall state that it covers matters arising under the laws of the State of Maryland, the general corporation law of the State of Delaware (the "DGCL"), the Partnership Act, the Delaware Limited Liability Company Act and the federal laws of the United States, and shall further state that, to the extent that the opinion set forth in Section 6(b)(vi) relates to any instrument or agreement which is governed by the laws of any jurisdiction other than the State of Maryland, such counsel has assumed that the laws of such other jurisdiction are in all relevant respects identical to the laws of the State of Maryland; the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall state that it covers matters arising under the laws of the State of Maryland, the Partnership Act and the federal laws of the United States.
(e) The Selling Stockholders shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Selling Stockholders, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, to the effect that:
(i) Each Selling Stockholder is the sole registered owner of the Securities to be sold by such Selling Stockholder; each Selling Stockholder has full partnership or corporate power, right and authority to sell such Securities and upon payment for and delivery of the Securities in accordance with this Agreement, the Underwriter will acquire a security entitlement (within the meaning of the UCC) with respect to the Securities and will also acquire their interest in the Securities free of any adverse claim (within the meaning of the UCC), assuming that the Underwriter does not have notice of any adverse claim (within the meaning of the UCC) to the Securities and assuming further that the transfer agent for the Company's Common Stock properly performs the instructions provided by the Selling Stockholders and delivers the Securities by book-entry transfer to the Underwriter.
(ii) This Agreement has been duly authorized, executed and delivered by or on behalf of each Selling Stockholder.
(iii) The sale of the Securities by the Selling Stockholders and the compliance by the Selling Stockholders with all of the provisions of this Agreement will not breach or result in a default under any indenture or other agreement or instrument identified on a schedule annexed to such opinion furnished to such counsel by the Selling Stockholders and which each Selling Stockholder has represented lists all material instruments to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, nor will such action violate the constituting documents of any Selling Stockholder or any Federal or New York statute or the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or any rule or regulation issued pursuant to any Federal or New York statute or the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or any order known to such counsel issued pursuant to any Federal or New York statute or the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act by any court or governmental agency or body or court having jurisdiction over any Selling Stockholder or any of its properties.
(iv) No consent, approval, authorization, order, registration or qualification of or with any Federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or, to our knowledge, any Federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act is required for the sale of the Securities by the Selling Stockholders and the compliance by the Selling Stockholders with all of the provisions of this Agreement, except for the registration under the Securities Act of the Securities, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriter.
(f) The Underwriter shall have received from Sidley ▇▇▇▇▇▇ LLP ▇▇▇▇▇ & Wood LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and each Selling Stockholder shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter opinions, dated the Closing Date, substantially and to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter Selling Stockholders a certificate of the DepositorCompany, signed by an executive officer and the Presidentprincipal financial or accounting officer of the Company, Senior Vice President or any Vice Presidentin their capacity as executive officers of the Company and in their capacity as executive officers of the general partner of the Operating Partnership, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) The the representations and warranties of the Depositor Company and the Operating Partnership in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor has Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.Com
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Shares shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the Closing Date and any settlement date hereof and the Closing Datepursuant to Section 3 hereof, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in a timely fashion in accordance with Section 5(a) hereof and a form of the Prospectus containing information relating to the description of the Shares and the method of distribution and similar matters shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period; and, at or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof, and no stop order suspending or preventing the use of any Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus shall have been issued and no proceedings therefor shall have been initiated or threatened by the Commission.
(b) ▇▇▇▇ ▇▇▇▇▇, general counsel of the Company, shall have furnished to the Underwriter a favorable written opinion, as counsel to the Company, addressed to the Underwriter and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect that:
(i) Each of the Company, the Bank and, to such counsel’s knowledge, each Other Subsidiary has all corporate or other power and authority necessary to own or hold its property and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus under the caption “Description of Common Stock;” and all of the issued shares of capital stock of each of the Bank and, to such counsel’s knowledge, each Other Subsidiary have been duly authorized and validly issued and are fully paid, non-assessable and are owned directly or indirectly by the Company;
(iii) The issue and sale of the Shares being delivered on the Closing Date and the execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which any of the Company, the Bank or, to the best of such counsel’s knowledge, any Other Subsidiary, is a party or by which the Company, the Bank or, to such counsel’s knowledge, any Other Subsidiary, is bound or to which any of the property or assets of the Company or any Subsidiary is subject, or (B) result in any violation of the provisions of the charter or by-laws of the Company or any Subsidiary or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any Subsidiary or any of their properties or assets; except, with respect to clauses (A) and (B) as such clauses apply to the Other Subsidiaries, for those defaults, breaches or violations that would not reasonably be expected to have a Material Adverse Effect; and, except for the registration of the Shares under the Securities Act and such consents, approvals, authorization, registrations or qualifications as may be required under the Exchange Act and applicable state or foreign securities laws in connection with the purchase and distribution of the Shares by the Underwriter, no consent, approval, authorizations or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby;
(iv) Each of the Company and its Subsidiaries has such authorizations of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including, without limitation, under any applicable environmental laws (each, a “Government Entity”), as are necessary to own, lease, license and operate its respective properties and to conduct its business, except where the failure to have any such authorization or to make any such filing or notice would not, singly or in the aggregate, have a Material Adverse Effect; each such authorization is valid and in full force and effect and, to such counsel’s knowledge, each of the Company and its Subsidiaries is in compliance in all material respects with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and, to such counsel’s knowledge, no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such authorization; and, to such counsel’s knowledge, such authorizations contain no restrictions that are burdensome to the Company or any of its Subsidiaries; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a Material Adverse Effect; and
(v) To such counsel’s knowledge, except as disclosed or incorporated by reference in the Prospectus, there are no legal or governmental proceedings pending or threatened to which the Company or any Subsidiary is a party or of which any property or assets of the Company or any Subsidiary is the subject which, if determined adversely to the Company or any Subsidiary, might have a Material Adverse Effect on (A) any communication from any Governmental Entity (including the Federal Reserve Board and any other bank, insurance or securities regulatory authority) (1) threatening to revoke any permit, license, franchise, certificate of authority or other governmental authorization, or (2) threatening or contemplating revocation or limitation of, or which would have the effect of revoking or limiting, FDIC deposit insurance, and (B) any order, decree, agreement, memorandum of understanding or similar arrangement with, or a commitment letter, supervisory letter or similar submission to, any Governmental Entity charged with the supervision or regulation of depository institutions or engaged in the insurance of deposits (including the FDIC) or the supervision or regulation of the Company or any Subsidiary, or any notice that such Governmental Entity is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of understanding, commitment letter, supervisory letter or similar submission; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by Governmental Entities.
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have furnished to the Underwriter a favorable written opinion, as counsel to the Company, addressed to the Underwriter and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect that:
(i) Each of the Company and the Bank is validly existing as a corporation and stock savings bank, respectively, in good standing under the laws of its jurisdiction of organization; the Company is duly qualified to do business and is in good standing as a foreign corporation in the State of New York;
(ii) The Registration Statement was declared effective under the Securities Act, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) of the Securities Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission;
(iii) The Registration Statement and the Prospectus and any further amendments or supplements thereto made by the Company prior to such Closing Date (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the documents incorporated by reference in the Registration Statement and the Prospectus comply as to form in all material respects with the requirements of the Exchange Act;
(iv) To such counsel’s knowledge, there are no contracts or other documents that are required to be described in the Prospectus or filed as exhibits to the Registration Statement by the Securities Act, that have not been so described or filed, and there are no contracts or other documents that are required by the Exchange Act to be described in or filed as exhibits to any document incorporated by reference in the Prospectus that have not been so described or filed;
(v) This Agreement has been duly authorized, executed and delivered by the Company;
(vi) The issue and sale of the Shares being delivered on the Closing Date and the execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed as an exhibit to the Company’s periodic reports filed under the Exchange Act to which any of the Company or the Bank is a party or by which the Company or the Bank is bound or to which any of the property or assets of the Company or the Bank is subject, or (B) result in any violation of the provisions of the charter or by-laws of the Company or the Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or the Bank or any of their properties or assets;
(vii) To such counsel’s knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right (other than rights which have been waived or satisfied) to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement;
(viii) The Company is registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(ix) The Bank is a member of the Federal Home Loan Bank of New York, and the deposit accounts of the Bank are insured up to the applicable limits by the FDIC;
(x) The Bank is a stock savings bank in good standing under the laws of New York; and
(xi) The statements contained in each of the Prospectus and the Company’s most recent annual report on Form 10-K under the caption “Regulation and Supervision,” and in the Prospectus under the caption “Description of Common Stock,” insofar as they describe federal statutes, rules and regulations and other legal matters constitute a fair summary thereof. In rendering such opinion, such counsel may state that their opinion is limited to matters governed by the Federal laws of the United States of America, the General Corporation Law of the State of Delaware and the laws of the State of New York. Such counsel shall also have furnished to the Underwriter a written statement, addressed to the Underwriter and dated the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, and (y) based on the foregoing, no facts have come to the attention of such counsel which lead them to believe that (I) the Registration Statement, as of the Effective Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus, as of its date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, or (II) any document incorporated by reference in the Prospectus or any further amendment or supplement to any such incorporated document made by the Company prior to the Closing Date, when they became effective or were filed with the Commission, as the case may be, contained, in the case of a registration statement which became effective under the Securities Act, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or, in the case of other documents which were filed under the Exchange Act with the Commission, 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, or (III) the Pricing Disclosure Package, as of the Applicable Time and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) The Underwriter shall have received from Weil, Gotshal & ▇▇▇▇▇▇ LLP, as counsel for the Underwriter, a favorable written opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Shares, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Underwriter shall have received from ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to ▇▇▇, P.C., as special regulatory counsel for the Underwriter opinionsUnderwriter, a favorable written opinion, dated the Closing Date, substantially Date and addressed to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing DateUnderwriter, to the effect that, no facts have come to the attention of such counsel which lead them to believe that the signer of such certificate has carefully examined Underwriter shall have discovered and disclosed to the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects Company on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe such Delivery Date that the Registration Statement, as of the Closing DateProspectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any an untrue statement of a material fact or omits to state a material fact which, in the opinion of such counsel, is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading.
(cf) Deloitte & Touche LLP will The Company shall have furnished to the Underwriter a lettercertificate, dated the Closing Date, of its Chief Executive Officer or a Senior Vice President and its Chief Financial Officer stating that: (i) the condition set forth in subsection (a) of this Section 7 has been satisfied, (ii) as of the date hereof and as of the Closing Date, in form the representations and substance satisfactory to warranties of the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature Company set forth in Section 1 hereof are accurate, (iii) as of the Definitive Free Writing Prospectus Closing Date all agreements, conditions and obligations of the Company to be performed or complied with hereunder on or prior thereto have been duly performed or complied with, (iv) the Company and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees Subsidiaries have not sustained any material loss or interference with the accounting records of the Depositor andtheir respective businesses or properties from fire, where applicableflood, the Mortgage Loan files of the Depositorhurricane, excluding accident or other calamity, whether or not covered by insurance, or from any questions of labor dispute or any legal interpretation.
or governmental proceeding, (dv) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.there are no pro forma or as adjusted financial statements
Appears in 1 contract
Sources: Underwriting Agreement (New York Community Bancorp Inc)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Ledgewood PC, counsel for the Company, to have furnished to the Underwriter its opinions and negative assurance letter dated the Closing Date and any settlement date and addressed to the Underwriter in form and substance acceptable to the Underwriter.
(c) The Underwriter shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP LLP, counsel for the Underwriter, its opinions and negative assurance letter, dated the Closing Date and any settlement date and addressed to the Underwriter, and the Company shall have furnished to such counsel such documents as they request for the Underwriter opinions, dated the Closing Date, substantially purpose of enabling them to the effect set forth in Exhibit A.pass upon such matters.
(bd) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice President Chief Executive Officer or any Vice PresidentChief Financial Officer of the Company, dated the Closing DateDate and any settlement date, to the effect that the each signer of such certificate has carefully examined the Registration Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has come been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to his attention that would lead him to believe the Underwriter a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Registration StatementCharter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused Withum to have furnished to the Underwriter, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, contains and any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Datesettlement date, in form and substance satisfactory to the Underwriter, confirming that they are a registered public accounting firm that is independent with respect to the effect Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that they have in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed certain specified procedures by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the applicable letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as a result of which they information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have determined been (i) any change or decrease specified in the letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Global Market, satisfactory evidence of which shall have been provided to the Underwriter.
(j) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter and the Services Agreement.
(k) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) Prior to the Closing Date and any settlement date, the Company shall have furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records request. If any of the Depositor andconditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, where applicableor if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Mortgage Loan files Closing Date or any applicable settlement date by the Underwriter. Notice of such cancellation shall be given to the Depositor, excluding any questions Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard ▇▇▇▇▇▇ & Poor’s, a division of The ▇▇▇▇▇▇-▇ LLP, counsel for the Underwriter, at ▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, Inc. (“Moody’s”)▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. The Class M-1 Certificates shall have been rated “AA+” by S&P▇▇▇▇▇▇▇▇, “AA+” by Fitchunless otherwise indicated herein, “AA (high)” by DBRS on the Closing Date and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.any applicable settlement date.
Appears in 1 contract
Sources: Underwriting Agreement (Ftac Zeus Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor Community Facilities District contained herein herein, as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the Community Facilities District made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor Community Facilities District of its obligations to be performed hereunder at or prior to the Closing Date, and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated At the Closing Date, substantially the Community Facilities District Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the effect set forth Underwriter, and there shall have been taken in Exhibit A.connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate;
(b) The Depositor shall have furnished to information contained in the Underwriter a certificate of the DepositorOfficial Statement will, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect and as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued date of any supplement or amendment thereto pursuant to Section 3(i) hereof, be true, correct and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statementcomplete in all material respects and will not, as of the Closing DateDate or as of the date of any supplement or amendment thereto pursuant to Section 3(i) hereof, contains contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(c) Deloitte & Touche LLP will Between the date hereof and the Closing Date, the market price or marketability of the Bonds at the initial offering prices set forth in the Official Statement or the ability of the Underwriter to enforce contracts for the sale of the Bonds, shall not have furnished been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the Community Facilities District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds) by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration or a letterdecision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department or the Internal Revenue Service of the United States of America, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon the interest that would be received by the holders of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
(2) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission (the “SEC”), or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under, or from the other requirements of, the Securities Act of 1933, as amended, or that the Resolution is not exempt from qualification under, or from the other requirements of, the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(3) any amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Community Facilities District, its property, income, securities (or interest thereon), the validity or enforceability of the Special Tax or the ability of the Community Facilities District to construct or acquire the improvements as contemplated by the Community Facilities District Documents or the Official Statement or the right of any owner of the property within the Community Facilities District to develop such property in the manner described in the Official Statement;
(4) any event occurring, or information becoming known, which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or results in the Official Statement containing any untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; or
(5) the declaration of war or the escalation of, or engagement in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to the effective operation of the government of, or the financial community in, the United States; or
(6) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, or the general suspension of trading on any national securities exchange or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction; or
(7) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter; or
(8) the entry of an order by a court of competent jurisdiction which order, in the reasonable opinion of the Underwriter, materially and adversely affects proposed development of property within the Community Facilities District; or
(9) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred; or
(10) there shall have been any material adverse change in the affairs of the Community Facilities District or County that in the Underwriter’s reasonable judgment will materially adversely affect the market for the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or
(11) there shall be established any new restriction on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order; or
(12) a stop order, release, regulation, or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made to the effect that the issuance, offering, or sale of the Bonds, including all the underlying obligations as contemplated hereby or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Exchange Act, and the Trust Indenture Act of 1939, as amended; or
(13) the commencement of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body described in Section 3(k).
(d) On the Closing Date, the Underwriter shall have received counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) The Community Facilities District Documents, together with a certificate dated as of the Closing DateDate of the Clerk of the Board to the effect that each such document is a true, correct and complete copy of the one duly approved by the Board;
(2) The Official Statement, duly executed by the Community Facilities District;
(3) The opinion of Bond Counsel, dated the Closing Date and addressed to the Community Facilities District, in substantially the form attached to the Preliminary Official Statement as Appendix C, and substance satisfactory a reliance letter from such firm, dated the Closing Date and addressed to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as approving opinion addressed to the Community Facilities District may be relied upon by the Underwriter may reasonably request to the same extent as if such opinion were addressed to them;
(4) The supplemental opinion of an accountingBond Counsel, financial or statistical nature set forth dated the Closing Date and addressed to the Underwriter, to the effect that (i) this Bond Purchase Agreement, and the Community Facilities District Continuing Disclosure Certificate have been duly authorized, executed and delivered by the Community Facilities District, and, in the Definitive Free Writing Prospectus case of the Bond Purchase Agreement, assuming such agreement constitutes a valid and binding obligation of the respective other parties thereto, constitute the legally valid and binding obligations of the Community Facilities District enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and is subject to general principles of equity and to the exercise of judicial discretion in appropriate cases; (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Prospectus Supplement Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended; and (iii) the statements contained in the Official Statement under the caption captions “The Initial Mortgage LoansTHE BONDS,” “SOURCES OF PAYMENT FOR THE BONDS,” “TAX MATTERS,” and elsewhere therein agrees with the accounting records in Appendices C, E, F and G, insofar as such statements expressly summarize certain provisions of the Depositor and, where applicableBonds, the Mortgage Loan files Indenture, the other agreements and the opinion of such firm concerning the Depositorexclusion from gross income for federal income tax purposes and exemption from State of California personal income taxes of interest on the Bonds, excluding any questions of legal interpretation.are accurate in all material respects;
(d5) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division letter of The ▇▇▇▇▇▇-▇▇▇ ▇▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇▇ Investors Service& ▇▇▇▇▇, Inc. a Professional Corporation, as disclosure counsel (“Moody’sDisclosure Counsel”) dated the Closing Date and addressed to the Community Facilities District and to the Underwriter, to the effect that, without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official Statement, but on the basis of their participation in conferences with representatives of the Community Facilities District, the Special Tax Consultant and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Official Statement, as of its date contained, or as of the Closing Date contains, any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (except that no view need be expressed with respect to (i) the expressions of opinion, the assumptions, the projections, estimates and forecasts, the charts, the financial statements or other financial, numerical, economic, demographic or statistical data, assessed or appraised valuations, absorption schedules, or archeological or environmental matters contained in the Official Statement; (ii) any CUSIP numbers or information relating thereto; (iii) any information with respect to The Depository Trust Company and its book-entry system; (iv) any information contained in the Appendices to the Official Statement; (v) any information incorporated by reference into the Official Statement; and (vi) any information with respect to the Underwriter or underwriting matters with respect to the Bonds, including but not limited to information under the caption “UNDERWRITING”). The Class M-1 Certificates shall have ;
(6) A certificate, dated the Closing Date and signed by an authorized representative of the Community Facilities District, ratifying the use and distribution by the Underwriter of the Preliminary Official Statement and the Official Statement in connection with the offering and sale of the Bonds and certifying that (i) the representations and warranties of the Community Facilities District contained in Section 3 hereof are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date; (ii) to the best of his or her knowledge, no event has occurred since the date of the Official Statement affecting the matters contained therein which should be disclosed in the Official Statement for the purposes for which it is to be used in order to make the statements and information contained in the Official Statement not misleading in any material respect, and the Bonds and the Community Facilities District Documents conform as to form and tenor to the descriptions thereof contained in the Official Statement; and (iii) the Community Facilities District has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Community Facilities District Documents at or prior to the Closing Date;
(7) An opinion, dated the Closing Date and addressed to the Underwriter, of the office of County Counsel, to the effect that (i) the County was duly organized and is validly existing as a division of the State under the Constitution and laws of the State of California,
(ii) the Board adopted the resolutions and ordinances forming the Community Facilities District, confirming the Special Tax, approving the Community Facilities District Documents and authorizing the sale and issuance of the Bonds at meetings of the Board which were held pursuant to law, (iii) to its current actual knowledge, there are no actions, suits, proceedings, inquiries, or investigations, at law or in equity, before or by any California court, governmental agency, public board, or body, pending (notice of which has been rated “AA+” by S&Pserved on the County) or, “AA+” by Fitchthreatened in writing against the County or the Community Facilities District, “AA (high)” by DBRS for which the County or the Community Facilities District has been served, to restrain or enjoin the issuance of the Bonds, the collection or application of the Special Tax, or the payment of principal of and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&Pinterest on the Bonds, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.or in any way contesting the validity of the Bonds or the Community Facilities District Documents or this Bond Purchase Agreement;
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter, as to purchase the Certificates Securities to be purchased at each Time of Delivery, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and the Closing Dateat and as of such Time of Delivery, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP The Prospectus shall have furnished been filed with the Commission pursuant to Rule 424(b) under the Underwriter opinionsAct within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a); the final term sheet contemplated by Section 5(A)(a), dated and any other material required to be filed by the Closing DateCompany pursuant to Rule 433(d) under the Act, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date been filed with the same effect as if made on Commission within the Closing Date, and 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 the Closing Date;
(ii) No applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement has or any part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted or, initiated or threatened by the Commission and no notice of objection of the Commission to his knowledge, threatenedthe use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; andno stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(iiib) Nothing has come J▇▇▇▇ Day, counsel for the Company, shall have furnished to his attention that would lead him the Underwriter an opinion, dated such Time of Delivery, with respect to believe that such matters as the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingUnderwriter may reasonably require.
(c) Deloitte & Touche LLP will The Company shall have furnished to the Underwriter a letteran opinion, dated such Time of Delivery, of National City Corporation Law Department, counsel for the Company, with respect to such matters as the Underwriter may reasonably require.
(d) The Underwriter shall have received from S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated such Time of Delivery, with respect to such matters as the Underwriter may reasonably require.
(e) On the date of the Closing DateProspectus at a time prior to the execution of this Agreement, at 9:30 A.M., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at such Time of Delivery, (1) Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, containing statements and information of the Underwriter, type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect that they have performed financial statements, certain specified procedures as a result of which they have determined that such financial information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth contained in the Definitive Free Writing Prospectus Registration Statement and the Prospectus Supplement under and such other information specified therein and (2) the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records Company shall have furnished or caused to be furnished to you a certificate or certificates of the Depositor and, where applicable, the Mortgage Loan files Chief Financial Officer of the DepositorCompany, excluding any questions dated the respective dates of legal interpretationdelivery thereof, in form and substance satisfactory to you, containing statements and information with respect to the financial statements, certain financial information contained in the Registration Statement and the Prospectus and such other information specified therein, based on an examination of the Company’s financial records and schedules undertaken by the Chief Financial Officer or members of his staff who are responsible for the Company’s financial and accounting matters.
(df) Neither the Company nor any of its Significant Subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development that is reasonably likely to involve a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Underwriter so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus.
(g) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Company shall have been rated complied with the provisions of the first sentence of Section 5(A)(d) with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “AAAnationally recognized statistical rating organization,” as that term is defined in Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by Standard & Poor’seither Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, a division political or economic conditions in the United States or elsewhere, if the effect of The any such event specified in clause (iv) or (v) in the judgment of G▇▇▇▇▇▇-, S▇▇▇▇ Companies, Inc. & Co. makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus.
(“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”j) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates Any actions required for the shares of Stock issuable upon conversion of the Securities to be duly listed for quotation on the New York Stock Exchange shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA taken.
(high)” by DBRS and “Aa1” by Moody’s. k) The Class M-2 Certificates Company shall have been rated “AA” furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by S&Pthe Company of all of its obligations hereunder to be performed at or prior to such time, “AA+” by Fitch, “AA” by DBRS as to the matters set forth in subsections (a) and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS f) of this Section and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein in this Agreement as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder under this Agreement and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b) under the Act; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 under the Act; and no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or any notice objecting to their use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, United States counsel for the Company, to have furnished to the Underwriter (i) its opinion dated the Closing Date and addressed to the Underwriter, substantially in the form of Exhibit B hereto, and (ii) its tax opinion dated the Closing Date and and addressed to the Underwriter, in form and substance satisfactory to the Underwriter.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinion dated the Closing Date and addressed to the Underwriter, substantially in the form of Exhibit C hereto.
(d) The Company shall have requested and caused Fangda Partners, PRC counsel for the Company, to have furnished to the Company its opinion dated the Closing Date, substantially in the form of Exhibit D hereto, together with a consent letter permitting the Company to provide its opinion to the Underwriter; such consent letter shall be in form and substance satisfactory to the Underwriter.
(e) The Depositary shall have requested and caused ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Associates, LLP, counsel for the Depositary, to have furnished to the Underwriter its opinion dated the Closing Date and addressed to the Underwriter, substantially in the form of Exhibit E hereto.
(f) The Underwriter shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(g) The Underwriter shall have furnished to received from King and Wood, PRC counsel for the Underwriter Underwriter, such opinion or opinions, dated the Closing Date, substantially Date and addressed to the effect set forth in Exhibit A.Underwriter, with respect to certain issues under PRC law relating to the transactions contemplated hereunder and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to King and Wood such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(bh) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice President chairman of the board or any Vice Presidentthe chief executive officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement Statement, the ADR Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the Prospectus offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the ADR Registration Statement or the Registration Statement or of any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened;
(iii) since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iiiiv) Nothing has come to his attention that would lead him to believe that a true and complete copy of the Registration Statementlegal opinion of Fangda Partners, as of PRC counsel for the Company, dated the Closing Date, contains any untrue statement of a material fact is attached as an exhibit to such certificate and such opinion has not been amended or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingwithdrawn.
(ci) The Company shall have requested and caused Deloitte Touche & Touche LLP will Tohmatsu CPA Ltd. to have furnished to the Underwriter a letterat the Execution Time and at the Closing Date, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect set forth in Exhibit F, with respect to the financial statements and certain financial information contained in the Preliminary Prospectus dated November 22, 2010, the Registration Statement, the Disclosure Package and the Final Prospectus; provided that they the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have performed certain been (i) any change or decrease specified procedures in the letter or letters referred to in paragraph (l) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a result whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(k) The Deposit Agreement shall be in full force and effect.
(l) The Depositary shall have furnished or caused to be furnished to the Underwriter certificates satisfactory to the Underwriter evidencing the deposit with the Custodian of the Underlying Shares in respect of which they have determined that ADSs to be purchased by the Underwriter on such information Closing Date are to be issued, and the execution, issuance, countersignature (if applicable) and delivery of the ADRs evidencing such ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationrequest.
(dm) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(n) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates ADSs shall have been rated “AAA” approved for listing on the NYSE, subject only to official notice of issuance.
(o) The FINRA shall have confirmed that it has not raised any objection with respect to the fairness or reasonableness of the underwriting, or other arrangements of the transactions, contemplated hereby.
(p) There shall not be any adverse legislative or regulatory developments related to the M&A Rules and Related Clarifications which in the reasonable judgment of the Underwriter would make it inadvisable to proceed with the public offering or the delivery of the Shares and the ADSs on the terms and in the manner contemplated in this Agreement.
(q) The Lock-up Agreements shall be in full force and effect on the Closing Date. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter under this Agreement may be canceled at, or at any time prior to, the Closing Date by Standard & Poor’s, a division the Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇ ▇▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by & ▇▇▇▇▇’▇▇▇ Investors ServiceLLP, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&Pcounsel for the Underwriter, “AA+” by Fitchat Bank of China Tower, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P39/F, “AA+” by FitchOne Garden Road, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&PCentral, “AA-” by FitchHong Kong, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (VanceInfo Technologies Inc.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇The Canadian Final Prospectus shall have been filed with the Canadian Qualifying Authorities within the applicable time period prescribed by and in accordance with the Canadian Shelf Procedures, all other steps or proceedings shall have been taken that may be necessary in order to qualify the Securities for distribution to the public in each of the Qualifying Provinces; and no order suspending the distribution of the Securities has been issued by any of the Canadian Qualifying Authorities and no proceedings for that purpose shall have been instituted or threatened.
(b) The U.S. Final Prospectus, or any supplement thereto will be filed in the manner and within the time period thereby required by General Instruction II.L. of Form F-10; the final term sheet contemplated by Section 5(b) hereto and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 under the Act; and no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall LLP, United States counsel for the Company, to have furnished to the Underwriter opinionstheir opinion, dated the Closing Date, substantially Date and addressed to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing DateUnderwriter, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations each of Alaska Gold Company, NovaGold Resources Alaska, Inc. and warranties ▇▇▇▇▇▇ Creek LLC (each a “U.S. Subsidiary” and collectively the “U.S. Subsidiaries”) has been duly incorporated or formed, as applicable, and is validly existing as a corporation or limited liability company in good standing under the laws of the Depositor jurisdiction in this Agreement are true which it is chartered or organized, with full corporate power and correct in all material respects on and authority to own or lease, as of the Closing Date with the same effect as if made on the Closing Datecase may be, and to operate its properties and conduct its business as described in the Depositor has complied with all Disclosure Package and the agreements U.S. Final Prospectus, and satisfied all is duly qualified to do business as a foreign corporation or limited liability company and is in good standing under the conditions on its part to be performed or satisfied at or prior to the Closing Datelaws of each jurisdiction which requires such qualification;
(ii) No all the outstanding shares of capital stock of each of U.S. Subsidiary (other than ▇▇▇▇▇▇ Creek LLC) have been duly authorized and validly issued and are fully paid and nonassessable, and NovaGold (Bermuda) Alaska Limited is the sole registered holder of the capital stock of each U.S. Subsidiary (other than ▇▇▇▇▇▇ Creek LLC) and, to the knowledge of such counsel, such capital stock is held by NovaGold (Bermuda) Alaska Limited free and clear of any security interest, claim, lien or encumbrance;
(iii) the membership interests of ▇▇▇▇▇▇ Creek LLC have been duly authorized and validly issued, and NovaGold Resources Alaska Inc. is the registered holder of 50% of the membership interests in ▇▇▇▇▇▇ Creek LLC and, to the knowledge of such counsel, such membership interests are held by NovaGold Resources Alaska Inc. free and clear of any security interest, claim, lien or encumbrance other than a security interest in favour of ▇▇▇▇▇▇▇ Gold, US Inc.;
(iv) the Underlying Securities are duly listed, and admitted and authorized for trading, subject to official notice of issuance, on the American Stock Exchange;
(v) to the knowledge of such counsel, there is no franchise, contract or other document of a character required to be filed as an exhibit to the Registration Statement which is not filed as required;
(vi) the statements included or incorporated by reference in the Preliminary Prospectuses and Final Prospectuses under the headings “Certain Income Tax Considerations for U.S. Holders - United States Federal Income Tax Considerations” and “Risk Factors – We believe we are a “passive foreign investment company”...” insofar as such statements summarize legal matters discussed therein, are accurate and fair summaries of such legal matters in all material respects;
(vii) the statements included or incorporated by reference in the Preliminary Prospectuses and Final Prospectuses under the headings “Description of Debt Securities” and “Description of Notes”, insofar as such statements purport to summarize certain provisions of the Securities and the Indenture, provide a fair summary of such provisions;
(viii) the Registration Statement has become effective under the Act, the Indenture has been qualified under the Trust Indenture Act and the Form F-X was filed with the Commission prior to the effectiveness of the Registration Statement; the filing of the U.S. Preliminary Prospectus, the U.S. Final Prospectus and any supplements thereto, has been made in the manner and within the time periods required by Form F-10 and the applicable rules and regulations of the Commission; to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use has been issued and issued, no proceedings for that purpose have been instituted oror threatened, and the Registration Statement, the U.S. Preliminary Prospectus and the U.S. Final Prospectus (other than the financial statements and other financial and statistical information contained therein as to his knowledgewhich such counsel need express no opinion) and the Form F-X comply as to form in all material respects with the applicable requirements of the Act and the Trust Indenture Act and the respective rules thereunder;
(ix) the Company is not and, threatenedafter giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the U.S. Final Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended;
(x) assuming the due authorization, execution and delivery of this Agreement under the laws of the Provinces of British Columbia and Nova Scotia and the federal laws of Canada applicable therein, this Agreement (to the extent that execution and delivery are governed by the laws of the State of New York) has been duly executed and delivered by the Company;
(xi) assuming the due authorization, execution and delivery of the Indenture under the laws of the Provinces of British Columbia and Nova Scotia and the federal laws of Canada applicable therein, the Indenture has been duly executed and delivered by the Company to the extent such execution and delivery are governed by the laws of the State of New York and, assuming due execution and delivery thereof by the Trustee, constitutes a valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms (subject to customary exceptions) and the Securities will be convertible into the Underlying Securities in accordance with their terms; and the Indenture conforms in all material respects with the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder;
(xii) assuming the due authorization, execution and delivery of the Securities under the laws of the Provinces of British Columbia and Nova Scotia and the federal laws of Canada applicable therein, the Securities have been duly executed and delivered by the Company to the extent such execution and delivery are governed by the laws of the State of New York and, when duly authenticated as provided in the Indenture and paid for as provided in this Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms (subject to customary exceptions) and will be entitled to the benefits of the Indenture;
(xiii) under the laws of the State of New York relating to submission of personal jurisdiction, the Company has, pursuant to Section 16 of this Agreement and pursuant to Section 113 of the Indenture, validly (i) submitted to the non-exclusive jurisdiction of any federal or state court in the City, County and State of New York, in any action based on or under this Agreement and the Indenture, and (ii) appointed CT Corporation as its authorized agent for the purposes described in Section 16 of this Agreement and pursuant to Section 113 of the Indenture;
(xiv) no consent, approval, authorization, filing with or order of any U.S. court or governmental agency or body is required in connection with the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriter in the manner contemplated in this Agreement, in the U.S. Preliminary Prospectus and the U.S. Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(xv) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof (including the issuance of the Underlying Securities upon conversion of the Securities) will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to any U.S. statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties; and
(iiixvi) Nothing to the knowledge of such counsel, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the States of New York and Alaska or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. In addition to rendering the opinions set forth above, such counsel shall also include a statement to the effect that such counsel has come to his attention that would lead him to believe that participated in the preparation of the Registration Statement, as the Disclosure Package, the U.S. Final Prospectus and in conferences with officers and other representatives of the Closing Company, Canadian counsel for the Company, representatives of the independent accountants for the Company, counsel for the Underwriter and representatives of the Underwriter at which the contents of the Registration Statement, the Disclosure Package and U.S. Final Prospectus and related matters were discussed and although such counsel has not independently verified, and (except as to those matters and to the extent set forth in the opinions referred to in subsection (vi) of this Section 6(c)) is not passing upon and does not assume any responsibility for, the factual accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the U.S. Final Prospectus, on the basis of such participation, no facts have come to such counsel’s attention which have caused such counsel to believe that (i) on the Effective Date, contains the Registration Statement contained any untrue statement of a material fact or omits omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading, or that (ii) the Prospectusdocuments specified in a schedule to such counsel’s letter, consisting of those included in the Disclosure Package as of the Closing DateExecution Time, contains contained any untrue statement of a material fact or omits omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
, or (ciii) Deloitte & Touche LLP will have furnished to as of the Underwriter a letter, dated date of the U.S. Final Prospectus and as of the Closing Date, the U.S. Final Prospectus included an untrue statement of a material fact or omitted to state a material fact necessary in form order to make the statements therein, in light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and substance satisfactory other financial and statistical information, and the information derived from the reports of or attributed to persons named in the U.S. Preliminary Prospectus and the U.S. Final Prospectus under the heading “Interest of Experts”, included or incorporated by reference therein, as to which such counsel need express no belief). References to the U.S. Final Prospectus in this paragraph (c) shall also include any supplements thereto at the Closing Date.
(d) The Company shall have requested and caused Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Canadian counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, to the effect that they have performed certain specified procedures that:
(i) each of the Company, NovaGold Canada Inc., Galore Creek Mining Corporation, Galore Creek Partnership and NovaGreenPower Inc. (together with NovaGold Canada Inc., the “Canadian Subsidiaries”) has been duly incorporated or formed, as the case may be, and is validly existing as a result of which they have determined that such information corporation or partnership, as the Underwriter case may reasonably request be, in good standing with respect to the filing of an accountingreturns under the laws of the jurisdiction in which it is chartered or organized, financial with all necessary corporate (where applicable) power and authority to own or statistical nature lease, as the case may be, and to operate its properties and conduct its business as described in the Preliminary Prospectuses and the Final Prospectuses, and is duly qualified to do business as a foreign corporation or partnership, as the case may be, and is in good standing under the laws of each jurisdiction which requires such qualification;
(ii) Other than Galore Creek Mining Corporation and Galore Creek Partnership, all the outstanding shares of capital stock of the Canadian Subsidiaries as reflected in the securities register of the Canadian Subsidiaries are registered in the name of the Company, or, in the case of certain preferred shares of NovaGold Canada Inc., in the name of Coast Mountain Hydro Corp. All the outstanding shares of capital stock of Coast Mountain Hydro Corp. as reflected in the securities register of such company are registered in the name of NovaGreenPower Inc. All the outstanding shares of capital stock of NovaGreenPower Inc. as reflected in the securities register of such company are registered in the name of the Company. All of the outstanding shares of capital stock of Galore Creek Mining Corporation as reflected in the securities register of Galore Creek Mining Corporation are registered in the name of Galore Creek Partnership. NovaGold Canada Inc. is shown as the holder of a fifty percent partnership interest in Galore Creek Partnership as reflected in the partnership register of Galore Creek Partnership;
(iii) the Company’s authorized equity capitalization is as set forth in the Definitive Free Writing Prospectus Preliminary Prospectuses and the Prospectus Supplement under Final Prospectuses; the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records share capital of the Depositor Company conforms in all material respects to the description thereof contained in the Preliminary Prospectuses and the Final Prospectuses; the Securities have been duly and validly authorized and allotted, and, where applicablewhen issued and delivered to and paid for by the Underwriter pursuant to this Agreement, will be fully paid and nonassessable; the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall Underlying Securities have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.conditionally approved for listing on the Toronto Stock Exchange; the Underlying S
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and the Closing Date (for purposes of this Section 6, “Closing Date” shall refer to the Closing Date for the Firm Securities and any Option Closing Date, if different, for the Option Securities), to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ No stop order suspending the effectiveness of the Registration Statement, or notice objecting to its use, shall have been issued by the Commission and no proceedings for that purpose shall have been instituted or threatened. The Prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B). All material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods presented for such filings under Rule 433. The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall LLP, counsel for the Company, to have furnished to the Underwriter opinions, dated the Closing Date, substantially their opinion to the effect set forth in Exhibit A.B attached hereto, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(bc) The Depositor Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ LLP, with respect to the opinion set forth in paragraph 1 of Exhibit C, and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, with respect to the opinion set forth in paragraph 2 of Exhibit C, counsel for the Company, to have furnished to the Underwriter their opinion as to tax issues, to the effect set forth in Exhibit C attached hereto, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(d) The Company shall have requested and caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special Maryland counsel for the Company, to have furnished to the Underwriter their opinion to the effect set forth in Exhibit D attached hereto, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(e) The Underwriter shall have received from Sidley Austin LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to this Agreement, the Registration Statement, the Prospectus and the Disclosure Package and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the Chairman of the Board of Directors, the President, any Senior Executive Vice President, any Senior Vice President or any Vice Presidentthe principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects as of the date hereof and on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement Statement, or notice objecting to its use, has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, as the Prospectus or the Disclosure Package (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Closing DateCompany and its subsidiaries, contains any untrue statement of taken as a material fact whole, whether or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, arising from transactions in the light ordinary course of the circumstances under which they were made, not misleadingbusiness.
(cg) Deloitte & Touche LLP will have furnished to At the time of the execution of this Agreement, the Underwriter shall have received from Ernst & Young LLP a letter, dated as of the Closing Datesuch date, in form and substance satisfactory to the Underwriter, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference or deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Disclosure Package.
(h) At the Closing Date, the Underwriter shall have received from Ernst & Young LLP a letter, dated the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 6(g) hereof, except that the specified date referred therein to shall be a date not more than three New York business days prior to the Closing Date.
(i) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Registration Statement, the Prospectus or the Disclosure Package, there shall not have performed certain been (i) any change or decrease specified procedures in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a result whole, whether or not arising from transactions in the ordinary course of which they business, except as set forth in or contemplated in the Registration Statement, the Prospectus and the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement, the Prospectus and the Disclosure Package.
(j) Prior to the Closing Date, the Company shall have determined that furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationrequest.
(dk) Subsequent to the date hereof, there shall not have been any decrease in the rating of any of the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the ▇▇▇▇ ▇▇▇) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Nor shall any such rating organization have publicly announced that it has placed any of the Company’s debt securities or preferred stock on what is commonly termed a “watch list” for possible downgrading.
(l) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Securities shall have been rated “AAA” listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Underwriter.
(m) Prior to the Closing Date, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A attached hereto from each officer and director of the Company listed on Schedule D attached hereto, addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be cancelled at, or at any time prior to, the Closing Date by Standard & Poor’sthe Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Sidley Austin LLP, a division of The counsel for the Underwriter, at ▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇, ▇▇▇ Investors Service▇▇▇▇, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P▇▇▇ ▇▇▇▇ ▇▇▇▇▇, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (UDR, Inc.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor District contained herein herein, as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the District or the City, acting on behalf of the District, made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor District of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated At the Closing Date, substantially the Formation Documents and the District Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the effect set forth Underwriter, and there shall have been taken in Exhibit A.connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate;
(b) The Depositor shall have furnished to Between the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated date hereof and the Closing Date, the market price or marketability of the Bonds, or the ability of the Underwriter to enforce contracts for the sale of the Bonds, at the initial offering prices set forth in the Official Statement shall not have been materially adversely affected, in the reasonable judgment of the Underwriter following consultation with the District (evidenced by a written notice to the District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department or the Internal Revenue Service of the United States of America, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon the interest as would be received by the holders of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof (it being acknowledged by the parties hereto that of the date hereof no such legislation, ruling, regulation, press release or other form of notice which would result in such adverse impact on the market price or marketability of the Bonds exists);
(2) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties obligations of the Depositor in this Agreement are true and correct in all material respects on and as general character of the Closing Date with Bonds, or the same effect Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as if made on amended, or that the Closing DateIndenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and 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 the Closing Datethen in effect;
(ii3) No stop order suspending any amendment to the effectiveness federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Registration Statement has been issued and no proceedings for that purpose have been instituted orDistrict or the City, to his knowledgetheir property, threatened; andincome, securities (or interest thereon), or the validity or enforceability of the Special Tax;
(iii4) Nothing has come to his attention that would lead him to believe that any event occurring, or information becoming known, which, in the Registration judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, as of or results in the Closing Date, contains Official Statement containing any untrue statement of a material fact or omits omitting to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(5) the declaration of war or the escalation of, or engagement in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to the effective operation of the government of, or the financial community in, the United States;
(6) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, or the general suspension of trading on any national securities exchange;
(7) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(8) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material adverse respect any statement or information contained in the Official Statement, or has the effect that the Prospectus, as of the Closing Date, Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(9) any amendment is made to the Official Statement that in the Underwriter’s reasonable judgment will materially adversely affect the marketability of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds.
(c) Deloitte & Touche LLP will On the Closing Date, the Underwriter shall have furnished received counterpart originals or certified copies of the following documents, in each case reasonably satisfactory in form and substance to the Underwriter Underwriter:
(1) the Formation Documents and the District Documents, together with a letter, certificate dated as of the Closing DateDate of the Clerk of the City Council to the effect that each Formation Document is a true, correct and complete copy of the one duly adopted by the City Council;
(2) the Preliminary Official Statement and the Official Statement;
(3) an opinion of Bond Counsel, dated the Closing Date and addressed to the District, in the form attached to the Preliminary Official Statement as APPENDIX E, and substance satisfactory an unqualified opinion of such counsel, dated the Closing Date and addressed to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as approving opinion addressed to the District may be relied upon by the Underwriter to the same extent as if such opinion was addressed to it;
(4) a supplemental opinion, dated the Closing Date and addressed to the Underwriter, of Bond Counsel, to the effect that (i) this Bond Purchase Agreement has been duly authorized, executed and delivered by the District and, assuming such agreement constitutes a valid and binding obligation of the other parties thereto, constitutes the legally valid and binding agreement of the District enforceable in accordance with its terms, except as enforcement may reasonably request be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and is subject to general principles of an accountingequity (regardless of whether such enforceability is considered in equity or at law); (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, financial or statistical nature set forth as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; (iii) the information contained in the Definitive Free Writing Prospectus Official Statement on the cover and under the captions “INTRODUCTION,” “THE REFUNDING PLAN,” “THE 2015 BONDS,” “SECURITY AND SOURCES OF PAYMENT FOR THE 2015 BONDS,” “LEGAL MATTERS – Tax Exemption” and APPENDICES C, D and E thereof, insofar as it purports to summarize certain provisions of the Act, the Bonds and the Prospectus Supplement under Indenture and such counsel’s opinion as to the caption “The Initial Mortgage Loans” exclusion from gross income for federal income tax purposes and elsewhere therein agrees with exemption from State of California personal income taxes of interest on the accounting records Bonds, present a fair and accurate summary of the Depositor such provisions; and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Offered Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and the Closing Datein this Agreement, to the accuracy of the statements of the Depositor Company made in any Officersapplicable officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder under this Agreement and to the following additional conditionsconditions applicable to the Note Offering:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP No stop order suspending the effectiveness of the related Registration Statement shall have furnished been issued and no proceedings for that purpose shall have been instituted, or to the Underwriter opinionsknowledge of the Company, dated threatened by the Closing Date, substantially to the effect set forth in Exhibit A.Commission.
(b) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice President or any Vice President, or the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and Transaction Documents to which the Prospectus Company is a party, and that:
(i) The , to the best of such person’s knowledge after reasonable investigation, the representations and warranties of the Depositor Company in this Agreement and the Transaction Documents to which the Company is a party are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Daterespects, and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(c) The Underwriter shall have received on the Closing Date a signed opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, special New York counsel for the Company, in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter, dated the Closing Date and addressed to the Underwriter, to the effect that:
(i) the Company is a limited liability company validly existing and in good standing under the laws of the State of Delaware; Holding is a corporation validly existing and in good standing under the laws of the State of Delaware; and each of the Company and Holding has full power and authority to enter into and perform its obligations under this Agreement and the Transaction Documents and to consummate the transactions contemplated hereby and thereby;
(ii) No the execution and delivery by each of the Bank, GECC, GECS, Holding, the Issuer and the Company (each, a “Specified Entity”) of this Agreement (if applicable) and the Transaction Documents to which it is a party, and the consummation by each of the transactions contemplated thereby, will not violate any applicable law, statute or governmental rule or regulation;
(iii) the execution and delivery by each Specified Entity of this Agreement (if applicable) and the Transaction Documents to which it is a party does not, and the consummation by each Specified Entity of the transactions contemplated thereby to occur on the date of this opinion will not, require any consent, authorization or approval of, the giving of notice to or registration with any governmental entity, except such as may have been made and such as may be required under the Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial Code of any state;
(iv) the execution and delivery by each of the Company and Holding of this Agreement and the Transaction Documents to which it is a party do not, and the consummation by the Company of the transactions contemplated thereby to occur on the date of this opinion will not, violate or contravene any term or provision of the Certificate of Formation or the Limited Liability Company Agreement of the Company or the Certificate of Incorporation or By-Laws of Holding;
(v) each of the Transaction Documents (other than the Trust Agreement) constitutes a legal, valid and binding obligation of each of GECC, GECS, the Issuer, the Company and Holding that is a party thereto, enforceable against each such party in accordance with its terms;
(vi) each of the Notes is in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified herein or in the Note Purchase Agreement, as applicable, it will be validly issued and outstanding, will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture;
(vii) the Issuer is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, required to be registered under the Investment Company Act of 1940, as amended;
(viii) the Registration Statement became effective under the Act not more than three years prior to the Closing Date, and the Prospectus has been filed with the Commission pursuant to Rule 424(b) thereunder in the manner and within the time period required by Rule 424(b); to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and the Prospectus and no proceedings for that purpose have been instituted orinstituted;
(ix) the statements in the Base Prospectus under the headings “The Trust—Perfection and Priority of Security Interests” and “—Conservatorship and Receivership; Bankruptcy,” and “ERISA Considerations” and the statements in the Prospectus Supplement under the heading “Structural Summary—ERISA Considerations” to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects;
(x) the Transaction Documents and the Notes conform in all material respects to his knowledgethe descriptions thereof contained in the Prospectus;
(xi) the Indenture has been duly qualified under the Trust Indenture Act of 1939, threatenedas amended and complies as to form with the Trust Indenture Act of 1939 and the rules and regulations of the Commission thereunder; and
(iiixii) Nothing has come to his attention that would lead him to believe that each of the Registration Statement, as of the Closing its Effective Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that and the Prospectus, as of its date, complied as to form in all material respects with the Closing Daterequirements of the Act and the rules and regulations under the Act, contains except that such counsel need not express any untrue statement of a material fact or omits opinion as to state a material fact required to be stated the financial and statistical data included therein or necessary excluded therefrom or the exhibits to make the Registration Statement and, except as, and to the extent set forth in paragraphs (ix) and (x), such counsel need not assume any responsibility for the accuracy, completeness or fairness of the statements therein, contained in the light of Registration Statement or the circumstances under which they were made, not misleadingProspectus.
(cd) Deloitte & Touche LLP will The Underwriter shall have furnished to the Underwriter a letter, dated as of received on the Closing DateDate a signed opinion of ▇▇▇▇▇▇ ▇▇, Special Transaction Counsel for the Bank, in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter, dated the Closing Date and addressed to the Underwriter, to the effect that they have performed certain specified procedures that:
(i) the Bank is (A) duly organized and validly existing as a Federal savings bank in good standing under the laws of the United States and (B) duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction where the conduct of its business or the ownership, lease or operation of its property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations under the Receivables Sale Agreement;
(ii) the Bank has all requisite corporate power and authority to execute, deliver and perform its obligations under the Receivables Sale Agreement and to consummate the transactions provided for therein;
(iii) the execution, delivery and performance by the Bank of the Receivables Sale Agreement and the consummation of the transactions provided for therein have been duly authorized by all requisite corporate action on the part of the Bank;
(iv) the Receivables Sale Agreement has been duly executed and delivered by a duly authorized officer of the Bank;
(v) the execution, delivery and performance by the Bank of the Receivables Sale Agreement and the consummation by the Bank of the transactions provided for therein, do not and will not (A) contravene, violate or constitute a default under any provision of the certificate of incorporation or By-laws of the Bank, (B) to the best of such counsel’s knowledge, contravene or violate any judgment, injunction, order or decree, to which the Bank or its property is subject, (C) to the best of such counsel’s knowledge, result in the creation or imposition of any mortgage, lien, pledge, charge, security interest or other encumbrance upon any property or assets of the Bank, except as contemplated by the Servicing Agreement and the Receivables Sale Agreement or (D) contravene violate, conflict with or constitute a default under any agreement, lease, indenture, trust, deed, mortgage, or other instrument of which they have determined that such information as counsel is aware to which the Underwriter may reasonably request of an accounting, financial Bank is a party or statistical nature set forth in by which the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationBank is bound.
(de) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Underwriter shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇ ▇▇, Vice President and Counsel, Capital Markets for GE Capital, Retail Finance, in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter, dated the Closing Date and addressed to the Underwriter to the effect that:
(i) each of GECC and GECS is validly existing and in good standing as a corporation under the laws of the State of Delaware and has the corporate power and authority to transact the business in which it is now engaged and to enter into and to perform all of its obligations under the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement to which it is a party in the various capacities set forth therein;
(ii) the execution, delivery and performance by each of GECC and GECS of the Servicing Agreement, the Administration Agreement and the Contribution Agreement to which it is a party and the consummation by GECC and GECS of the transactions contemplated thereby have been rated “AAA” duly authorized by Standard & Poor’sall necessary corporate action on the part of GECC and GECS;
(iii) the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement to which it is a division party have been duly and validly executed and delivered by GECC and GECS; and
(iv) the execution and delivery by each of GECC and GECS of the Servicing Agreement, the Administration Agreement, the Assignment Agreement and the Contribution Agreement to which it is a party and the consummation of the transactions contemplated thereby will not conflict with, result in a breach of any of the terms and provisions of, constitute (with or without notice or lapse of time) a default under (A) the certificate of incorporation or By-laws of GECC or, with respect to the Assignment Agreement, GECS, (B) to such counsel’s knowledge, and without any special investigation for this purpose, any material indenture, contract, lease, mortgage, deed of trust or other instrument of agreement to which GECC or, with respect to the Assignment Agreement, GECS is a party or by which GECC or, with respect to the Assignment Agreement, GECS is bound, or (C) to such counsel’s knowledge and without any special investigation for this purpose, any judgment, writ, injunction, decree, order or ruling of any court or governmental authority having jurisdiction over GECC or, with respect to the Assignment Agreement, GECS.
(f) The Underwriter shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service& Finger, Inc. counsel for the Owner Trustee, in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter, dated the Closing Date and addressed to the Underwriter, to the effect that:
(“Moody’s”). i) the Owner Trustee is duly incorporated and is validly existing and in good standing as a banking corporation under the laws of the State of Delaware;
(ii) the Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and as trustee under the Administration Agreement, and to consummate the transactions contemplated thereby;
(iii) the Owner Trustee has duly authorized, executed and delivered the Trust Agreement and the Administration Agreement, as trustee, and the Trust Agreement constitutes a legal, valid and binding obligation of the Owner Trustee, enforceable against the Owner Trustee in accordance with its terms; and
(iv) neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement, the Administration Agreement, as trustee, nor the consummation of any of the transactions by the Owner Trustee contemplated thereby, (A) is in violation of the charter or bylaws of the Owner Trustee or of any law, governmental rule or regulation of the State of Delaware or of the federal laws of the United States governing the trust powers of the Owner Trustee and (B) requires the consent or approval of, the withholding of objection on the part of, the giving of notice to, the filing, registration or qualification with, or the taking of any other action in respect of, any governmental authority or agency under the laws of the State of Delaware or the federal laws of the United States governing the trust powers of the Owner Trustee.
(g) The Class M-1 Certificates Underwriter shall have received on the Closing Date a signed opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Issuer, in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter, dated the Closing Date and addressed to the Underwriter, to the effect that:
(i) the Issuer has been rated duly formed and is validly existing as a statutory trust under the Delaware Statutory Trust Act, 12 Del. C. § 3801, et seq., and has the power and authority under the Trust Agreement and the Delaware Statutory Trust Act to execute, deliver and perform its obligations under the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, dated as of September 25, 2003, among the Indenture Trustee, the Issuer, and the Custodian (the “AA+” Custody and Control Agreement”) and the Transfer Agreement;
(ii) the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and Control Agreement, the Transfer Agreement, the Notes to be issued by S&Pthe Issuer on the Closing Date, “AA+” and the Certificates have been duly authorized and executed by Fitchthe Issuer;
(iii) the Trust Agreement is a legal, “AA valid and binding obligation of the Company and the Owner Trustee, enforceable against the Company and the Owner Trustee, in accordance with its terms;
(high)” iv) neither the execution, delivery or performance by DBRS the Issuer of the Indenture, the Administration Agreement, the Servicing Agreement, the Custody and “Aa1” Control Agreement or the Transfer Agreement, nor the consummation by Moody’s. The Class M-2 Certificates the Issuer of any of the transactions contemplated thereby, (A) requires the consent or approval of, the withholding of objection on the part of, the giving of notice to, the filing, registration or qualification with, or the taking of any other action in respect of, any governmental authority or agency of the State of Delaware, other than the filing of the certificate of trust with the Secretary of State, or (B) is in violation of the Trust Agreement or of any law, rule or regulation of the State of Delaware applicable to the Issuer;
(v) under § 3805 (b) and (c) of the Delaware Statutory Trust Act, (A) no creditor of any Certificateholder shall have been rated “AA” by S&Pany right to obtain possession of, “AA+” by Fitchor otherwise exercise legal or equitable remedies with respect to, “AA” by DBRS the property of the Issuer except in accordance with the terms of the Trust Agreement, and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P(B) except to the extent otherwise provided in the Trust Agreement, “AA-” by Fitcha Certificateholder (including the Company in its capacity as such) has no interest in specific Issuer property;
(vi) under the Delaware Statutory Trust Act, “AA the Issuer is a separate legal entity and, assuming that the Transfer Agreement conveys good title to the Issuer Estate (low)” by DBRS as defined in the Trust Agreement) to the Issuer as a true sale and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&Pnot as a security arrangement, “A+” by Fitchthe Issuer rather than the Certificateholders will hold whatever title to the Issuer property as may be conveyed to it from time to time pursuant to the Transfer Agreement, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.except to the extent that the Issuer has taken a
Appears in 1 contract
Sources: Underwriting Agreement (GE Capital Credit Card Master Note Trust)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Securities shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company and the Selling Stockholders contained herein as of the date hereof and Applicable Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Depositor Company and the Selling Stockholders made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) ▇▇The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, in form and substance satisfactory to the Underwriter.
(c) On the Closing Date, the Underwriter shall have received the favorable opinion of Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, regulatory counsel for the Company, dated as of the Closing Date, in form and substance satisfactory to the Underwriter.
(d) The Underwriter shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package and the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholders shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Selling Stockholders shall have requested and caused Simpson, Thacher & ▇▇▇▇▇▇▇▇ LLP, counsel for the Selling Stockholders, to have furnished to the Underwriter opinionstheir opinion, dated the Closing Date, substantially Date and addressed to the effect set forth Underwriter, in Exhibit A.form and substance satisfactory to the Underwriter.
(bf) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice Chairman of the Board or the President and the principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has carefully examined have reviewed the Registration Statement Statement, the Disclosure Package and the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has come to his attention that would lead him to believe that been no Material Adverse Change.
(g) The Underwriter shall have received a certificate of the Registration StatementSelling Stockholders, as of dated the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or effect that the Prospectusrepresentations and warranties of the Selling Stockholders in this Agreement are true and correct in all material respects on and as the Closing Date to the same effect as if made on the Closing Date.
(h) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriter, as of at the Applicable Time and at the Closing Date, contains any untrue statement of a material fact or omits (i) letters (which may refer to state a material fact required letters previously delivered to be stated therein or necessary to make the statements thereinUnderwriter), in the light dated respectively as of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated Applicable Time and as of the Closing Date, in form and substance satisfactory to the Underwriter, confirming that they are independent accountants with respect to the effect Company within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the nine-month period ended, and as at September 30, 2013 and 2014, in accordance with Statement on Auditing Standards No. 100, and (ii) letters (which may refer to letters previously delivered to the Underwriter), dated respectively as of the Applicable Time and as of the Closing Date, in form and substance satisfactory to the Underwriter, confirming that they are independent accountants with respect to Sheridan within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of Sheridan for the nine-month period ended, and as at September 30, 2013 and 2014, in accordance with Statement on Auditing Standards No. 100 and, in each of cases (i) and (ii), containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain specified procedures financial and statistical information included or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus.
(i) Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or operations of the Company and its subsidiaries taken as a result whole, whether or not arising from transactions in the ordinary course of which they business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(j) Subsequent to the Applicable Time, there shall not have determined been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) Prior to the Closing Date, the Company shall have furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationrequest.
(dl) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4Prior to the Closing Date, Class A-1, Class A-2 and Class A-3 Certificates the Securities shall have been rated “AAA” listed and admitted and authorized for trading on Nasdaq Global Select Market, subject to notice of official issuance and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by Standard the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholders in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ & Poor’s▇▇▇▇▇▇▇ LLP, a division of The counsel for the Underwriter, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Companies▇, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Amsurg Corp)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Certificates Notes on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor Issuer contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor Issuer and the Bank made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor Issuer of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) At the Closing Date, the Issuer Documents, all other Bank Credit Documents and the Letter of Credit shall have been duly authorized, executed and delivered by the respective parties thereto, and the Offering Circular shall have been delivered to the Underwriter, and none of the foregoing agreements shall have been amended, modified or supplemented so as to materially affect the content thereof, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the issuance of the Notes, and with the transactions contemplated thereby and by this Note Purchase Agreement, all such actions as ▇▇▇▇▇▇▇ , Halter & ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished LLP, counsel to the Underwriter opinions(“Underwriter’s Counsel”), dated shall deem to be necessary and appropriate.
(b) At the Closing Date, substantially the Offering Circular shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the effect set forth in Exhibit A.Underwriter.
(bc) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at At or prior to the Closing Date;
(ii) No stop order suspending , no event shall have occurred or information become known which, in the effectiveness judgment of the Registration Statement Underwriter, makes untrue in any material respect any statement or information contained in the Offering Circular or has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe the effect that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, Offering Circular contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(cd) Deloitte & Touche LLP will At or prior to the Closing Date, the Underwriter shall have furnished received an original copy or copies of the following documents, in each case satisfactory in form and substance to the Underwriter a letterand in each applicable case conforming in all material respects with any description thereof contained in the Offering Circular:
(i) The Issuer Documents, the Letter of Credit and the other Bank Credit Documents, each duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
(ii) The opinion of Bond, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, counsel to the Issuer, dated the Closing Date, satisfactory to the Underwriter and Underwriter’s Counsel;
(iii) The enforceability opinion of ▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP, special co-counsel to the Bank, dated the Closing Date, satisfactory to the Underwriter and the Underwriter’s Counsel;
(iv) The securities opinion of ▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP, Underwriter’s Counsel, dated the Closing Date, satisfactory to the Underwriter;
(v) The opinion of Lemery, Greisler, LLC, Esq., counsel to the Bank, dated the Closing Date, to the effect that the description of the Reimbursement Agreement in the Offering Circular is an accurate summary of that document;
(vi) Certificates, dated the Closing Date, signed by duly authorized officers of the Bank, satisfactory to the Underwriter and the Underwriter’s Counsel;
(vii) A certificate, dated the Closing Date, signed by a duly authorized officer of the Issuer, satisfactory to the Underwriter and the Underwriter’s Counsel, to the effect that the representations and warranties of the Issuer set forth in Section 3 hereof are true, correct and complete on the date of such certificate; and
(viii) Such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter or the Underwriter’s Counsel may request to evidence compliance by the Bank, the Trustee or the Issuer with legal requirements of closing, and to certify the truth and accuracy, as of the Closing Date, of the representations of the Issuer contained herein and the due performance or satisfaction by the Bank, the Trustee and the Issuer at or prior to such time of all agreements then to be performed and all conditions then to be satisfied by each of them.
(e) Between the date hereof and the Closing Date, legislation shall not have been enacted by the Congress or be actively considered for enactment by Congress, or recommended to the Congress for enactment by the President of the United States, or introduced or favorably reported for passage to either house of the Congress, and neither a decision, order or decree of a court of competent jurisdiction, nor an order, ruling, regulation or official statement of or on behalf of the Securities and Exchange Commission shall have been rendered or made, with the purpose or effect that the issuance, offering or sale of the Notes or any related security or obligations of the general character of the Notes or any related security as contemplated hereby, or the execution and delivery of the Indenture, is or would be in form violation of any provision of, or is or would be subject to registration or qualification requirements under, the Securities Act or the Trust Indenture Act.
(f) Between the date hereof and substance the Closing Date, there shall not have occurred any action by the Comptroller of the Currency, the Federal Reserve Board, the Federal Deposit Insurance Corporation, or any governmental agency or court which calls into question the validity or enforceability of the Letter of Credit.
(g) No event shall have occurred or fact exist which makes untrue, incorrect or inaccurate, in any material respect as of the time the same purports to speak, any statement or information contained in the Offering Circular, or which is not reflected in the Offering Circular but should be reflected therein as of the time and for the purpose for which the Offering Circular is to be used in order to make the statements and information contained therein not misleading in any material respect as of such time.
(h) None of the following shall have occurred: (i) additional material restriction not in force as of the date hereof shall have been imposed upon trading in securities generally by any governmental authority or by any national securities exchange or such trading shall have been suspended; (ii) the New York Stock Exchange or other national securities exchange, or the National Association of Securities Dealers, Inc. or other national securities association, or other similar national self-regulatory rule-making board, or any governmental authority, shall impose, as to the Notes or similar obligations, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or change in the net capital requirements of, underwriters; (iii) a general banking moratorium shall have been declared by federal, New York or Ohio authorities; or (iv) a war involving the United States of America, whether or not declared, or any other national or international calamity or crisis, or a financial crisis, shall have occurred, the effect of which, in the judgment of the Underwriter, would make it impracticable to market the Notes or would materially and adversely affect the ability of the Underwriter to enforce contracts for the sale of the Notes.
(i) All matters relating to this Note Purchase Agreement, the Offering Circular, the Issuer Documents, the other Bank Credit Documents, the Letter of Credit and the consummation of the transactions contemplated by this Note Purchase Agreement and the Offering Circular, shall be satisfactory to and subject to the approval of the Underwriter. If the conditions to the Underwriter’s obligations contained in this Note Purchase Agreement are not satisfied or if the Underwriter’s obligations shall be terminated for any reason permitted herein, this Note Purchase Agreement shall, at the option of the Underwriter, terminate and neither the Underwriter nor the Issuer shall have any further obligations hereunder, except as provided in Section 7 with respect to the effect that they have performed payment of certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationexpenses.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor Community Facilities District contained herein as of the date hereof and the Closing Dateherein, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the Community Facilities District made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor Community Facilities District of its their obligations to be performed hereunder at or prior to the Closing Date, and in reliance upon the representations and covenants of the Developer contained in the certificate(s) delivered as of the Closing Date, and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated A. At the Closing Date, substantially the Community Facilities District Resolutions and the Community Facilities District Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the effect set forth in Exhibit A.
(b) The Depositor Underwriter, and there shall have furnished to been taken in connection therewith, with the Underwriter a certificate issuance of the DepositorBonds and with the Bonds, signed and with the transactions contemplated thereby, and by this Purchase Agreement, all such actions as, in the Presidentopinion of Bond Counsel, Senior Vice President or any Vice President, dated shall be necessary and appropriate.
B. At the Closing Date, except as described in the Preliminary Official Statement, the City shall not be, in any respect material to the effect that transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the signer State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound, and the performance of the conditions precedent to be performed hereunder will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound, in any manner which would materially and adversely affect the performance of the conditions precedent to be performed by the City hereunder.
C. At the Closing Date, except as described in the Preliminary Official Statement, the Community Facilities District shall not be, in any respect material to the transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Community Facilities District is a party or is otherwise subject or bound, and the performance by the Community Facilities District of its obligations under the Bonds, the Community Facilities District Resolutions, the Community Facilities District Documents, and any other instruments contemplated by any of such certificate has carefully examined documents, and compliance with the Registration Statement and provisions of each thereof, or the Prospectus and that:
(i) The representations and warranties performance of the Depositor conditions precedent to be performed hereunder, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Community Facilities District is a party or is otherwise subject or bound, in this Agreement are any manner which would materially and adversely affect the performance by the Community Facilities District of its obligations under the Community Facilities District Documents or the performance of the conditions precedent to be performed by the Community Facilities District hereunder.
D. The information contained in the Official Statement is, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant hereto, true and correct in all material respects on and does not, as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Datedate of any supplement or amendment thereto, contains contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
E. Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth on the cover page of the Official Statement, of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds, shall not have been materially adversely affected, in the reasonable judgment of the Underwriter (c) Deloitte & Touche LLP will have furnished evidenced by a written notice to the Community Facilities District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
1. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration, or a letterdecision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department of the United States of America or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by any owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
2. Legislation introduced in or enacted (or resolution passed) by the Congress or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission (“SEC”), or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, including any or all underlying arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws as amended and then in effect;
3. A general suspension of trading on the New York Stock Exchange or other major exchange shall be in force, or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on any such exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction;
4. The introduction, proposal or enactment of any amendment to the federal or California Constitution or any action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Community Facilities District, its property, income, securities (or interest thereon), the validity or enforceability of Special Taxes, or the ability of the Community Facilities District to construct or acquire the improvements as contemplated by the Formation Documents, the Community Facilities District Documents or the Official Statement or the right of any owner of the property within the Community Facilities District to develop such property in the manner described in the Official Statement, or the ability of the Community Facilities District to issue the Bonds as contemplated by the Indenture and the Official Statement;
5. There shall have occurred (1) an outbreak or escalation of hostilities or the declaration by the United States of a national emergency or war, (2) any other calamity or crisis in the financial markets of the United States or elsewhere, or (3) the sovereign debt rating of the United States is downgraded by any major credit rating agency or a payment default occurs on United States Treasury obligations;
6. Except as disclosed in or contemplated by the Official Statement, any material adverse change in the affairs of the City or Community Facilities District shall have occurred;
7. Any event or circumstance shall exist that either makes untrue or incorrect in any material respect any statement or information in the Official Statement (other than any statement provided by the Underwriter) or is not reflected in the Official Statement but should be reflected therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and, in either such event, the City or the Community Facilities District refuses to permit the Official Statement to be supplemented to supply such statement or information, or the effect of the Official Statement as so supplemented is to materially adversely affect the market price or marketability of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds;
8. A general banking moratorium shall have been declared by federal or State authorities having jurisdiction and be in force;
9. A material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
10. Any new restriction on transactions in securities materially affecting the market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a charge to the net capital requirements of, underwriters shall have been established by any national securities exchange, the Comptroller of the Currency, , the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order;
11. Any proceeding shall have been commenced or be threatened in writing by the Securities and Exchange Commission against the City or the Community Facilities District; or
12. The commencement of any Action.
F. At or prior to the Closing Date, the Underwriter shall have received a counterpart original or certified copy of the following documents, in each case satisfactory in form and substance to the Underwriter:
1. The Official Statement, executed on behalf of the Community Facilities District by an authorized officer;
2. The Community Facilities District Documents, each duly executed and delivered by the respective parties thereto, with only such amendments, modifications or supplements as may have been agreed to in writing by the Underwriter;
3. The Community Facilities District Resolutions and the Formation Documents, and the Community Facilities District Documents, together with a certificate dated as of the Closing Date, in form and substance satisfactory Date of the City Clerk to the Underwritereffect that resolutions and documents are true, correct and complete copies of the ones duly adopted by the City Council;
4. An unqualified approving opinion for the Bonds, dated the Closing Date and addressed to the Community Facilities District, of Bond Counsel, to the effect that they have performed certain specified procedures the Bonds are the valid, legal and binding obligations of the Community Facilities District and that the interest thereon is excluded from gross income for federal income tax purposes and exempt from personal income taxes of the State, in substantially the form included as Appendix C to the Official Statement, together with a result letter of which they have determined Bond Counsel, dated the Closing Date and addressed to the Underwriter and the Trustee, to the effect that such information as opinion addressed to the Community Facilities District may be relied upon by the Underwriter and the Trustee to the same extent as if such opinion was addressed to it;
5. A supplemental opinion or opinions of Bond Counsel dated the Closing Date and addressed to the Underwriter to the effect that:
(i) this Purchase Agreement and the Continuing Disclosure Certificate have been duly executed and delivered by the Community Facilities District and, assuming due authorization, execution and delivery by the other parties thereto, constitute the valid and binding obligations of the Community Facilities District, except to the extent that enforceability may reasonably request be limited by moratorium, bankruptcy, reorganization, insolvency or other similar laws affecting creditors’ rights generally or by the exercise of an accounting, financial judicial discretion in accordance with general principles of equity or statistical nature set forth otherwise in appropriate cases and by limitations on legal remedies against public agencies in the Definitive Free Writing Prospectus State;
(ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Prospectus Supplement Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; and
(iii) the statements contained in the Official Statement under the captions “INTRODUCTION – Source of Payment for the Bonds,” “INTRODUCTION – Description of the Bonds,” “INTRODUCTION – Tax Exemption,” “INTRODUCTION – Parity Bonds for Refunding Purposes Only,” “THE BONDS,” “SOURCES OF PAYMENT FOR THE BONDS,” (except information under the caption “The Initial Mortgage Loans– Special Taxes” as to which no opinion is expressed), “TAX EXEMPTION,” Appendix C – “FORM OF OPINION OF BOND COUNSEL” and elsewhere therein agrees with the accounting records Appendix F – “SUMMARY OF THE INDENTURE,” excluding any material that may be treated as included under such captions by cross-reference or reference to other documents or sources, insofar as such statements expressly summarize certain provisions of the Depositor andIndenture and Bond Counsel’s final approving opinion, where applicableare accurate in all material respects.
6. A letter, dated the Closing Date and addressed to the Underwriter, of Disclosure Counsel, to the effect that such counsel is not passing upon and has not undertaken to determine independently or to verify the accuracy or completeness of the statements contained in the Preliminary Official Statement or in the Official Statement, and is, therefore, unable to make any representation to the Underwriter in that regard, but on the basis of its participation in conferences with representatives of the City, the Mortgage Loan files of the DepositorCity Attorney, excluding any questions of legal interpretation.
(d) The Depositoras issuer’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. counsel (“S&PIssuer’s Counsel”), Bond Counsel, the appraisal of the taxable properties within the Community Facilities District with a date of value as of February 9, 2024 (the “AAA” by Fitch Ratings, Inc. (“FitchAppraisal Report”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” prepared by ▇▇▇▇▇ ▇’▇▇▇▇ Investors Service& Associates, Inc. (the “Moody’sAppraiser”). The Class M-1 Certificates shall have been rated , Empire Economics, Inc., Special District Financing & Administration, LLC (the “AA+” by S&PSpecial Tax Consultant”), “AA+” by Fitchthe Municipal Advisor, “AA (high)” by DBRS representatives of the Underwriter and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&Pothers, “AA+” by Fitchduring which conferences the content of the Preliminary Official Statement and the Official Statement and related matters were discussed, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&Pits examination of certain documents, “AA-” by Fitchand, “AA (low)” by DBRS in reliance thereon and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&Pbased on the information made available to it in its role as Disclosure Counsel and its understanding of applicable law, “A+” by FitchDisclosure Counsel advises the Underwriter as a matter of fact, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&Pbut not opinion, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.that no information has come to the attention of the attorneys in the firm working on such matter which has led them to believe that the Prelimi
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities (or any Common Shares to be issued and sold by the Company pursuant to Section 13 in lieu thereof) shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof hereof, the Applicable Time and the Closing DateDate pursuant to Section 3 hereof, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated On the Closing Date, substantially (i) the Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or, to the effect set forth knowledge of the Company, threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriter, (ii) each preliminary prospectus and the Prospectus containing the Rule 430B Information shall have been filed with the Commission in Exhibit A.the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B), (iii) any material required to be filed by the Company pursuant to Rule 433(d) of the 1933 Act Regulations shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations, and (v) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, at the time it was required to be delivered or made available to purchasers of the Securities, included 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 existing at such time, not misleading.
(b) The Depositor At the time of execution of this Agreement, the Underwriter and the Forward Sellers shall have furnished received from PricewaterhouseCoopers llp a letter, addressed to the Underwriter, the Forward Sellers and the Forward Counterparties, dated the date hereof, in form and substance satisfactory to the Underwriter a certificate and the Forward Sellers, to the effect that:
(i) they are independent accountants with respect to the Company and its subsidiaries within the meaning of the Depositor1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the consolidated financial statements and supporting schedules of the Company included or incorporated by reference in the Registration Statement and the Prospectus and covered by their opinions therein comply in form in all material respects with the applicable accounting requirements of the 1933 Act and the 1934 Act, signed and the related published rules and regulations; (iii) it is their opinion that the financial statements of the properties acquired or proposed to be acquired by the PresidentCompany included in or incorporated by reference in the Company’s Registration Statement and covered by their opinions therein comply as to form with the applicable financial statement requirements of Rule 3-14 of the 1934 Act with respect to real estate operations acquired or to be acquired; (iv) they have performed limited procedures, Senior Vice President not constituting an audit, including a reading of the latest available unaudited interim consolidated financial statements of the Company and its subsidiaries, a reading of the minute books of the Company and its subsidiaries, inquiries of certain officials of the Company and its subsidiaries who have responsibility for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that (A) the unaudited interim consolidated financial statements and financial statement schedules, if any, of the Company included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the 1934 Act and the related published rules and regulations thereunder or that any material modification should be made to the unaudited condensed interim financial statements included in or incorporated by reference in the Registration Statement and the Prospectus for them to be in conformity with GAAP, (B) the unaudited pro forma condensed financial statements included in or incorporated by reference in the Company’s Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X under the 1933 Act or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements, (C) the information included or incorporated by reference in the Registration Statement and the applicable Prospectus under the caption “Selected Consolidated Financial Data” did not conform in all material respects with the disclosure requirements of item 301 of Regulation S-K, or (D) at a specified date not more than three days prior to the date hereof, there has been any change in the capital shares of the Company or increase in the consolidated total debt of the Company or any Vice Presidentdecrease in total consolidated shareholders’ equity of the Company, as compared with the amounts shown in the most recent consolidated balance sheet included or incorporated by reference in the Registration Statement and the Prospectus or, during the period from the date of the most recent consolidated statement of operations of the Company included or incorporated by reference in the Registration Statement and the Prospectus to a specified date not more than three days prior to the date hereof, there were any decreases, as compared with the corresponding period in the preceding year, in total consolidated revenues, or in consolidated net income of the Company, except in all instances for changes, increases or decreases which the Registration Statement and the Prospectus disclose have occurred or may occur; and (v) in addition to the audit referred to in their opinions and the limited procedures referred to in clause (iv) above, they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information which are included or incorporated by reference in the Registration Statement and the Prospectus and which are specified by you, and have found such amounts, percentages and financial information to be in agreement with the relevant accounting, financial and other records of the Company and its subsidiaries identified in such letter.
(c) At the time of execution of this Agreement, the Underwriter and the Forward Sellers shall have received from KPMG llp a letter, addressed to the Underwriter, the Forward Sellers and the Forward Counterparties, dated the date of such execution, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited financial statements of IRRETI included in the Company’s Current Report on Form 8-K, as filed with the Commission on December 4, 2006 and such other information included or incorporated by reference in the Prospectus as may reasonably be requested by the Underwriter and the Forward Sellers.
(d) On the Closing Date, the Underwriter and the Forward Sellers shall have received from PricewaterhouseCoopers llp a letter, addressed to the Underwriter, the Forward Sellers and the Forward Counterparties, dated the Closing Date, to the effect that such accountants reaffirm, as of the signer Closing Date, and as though made on the Closing Date, the statements made in the letter furnished by such accountants pursuant to paragraph (b) of this Section 7, except that the specified date will be a date not more than three days prior to the Closing Date.
(e) On the Closing Date, the Underwriter and the Forward Sellers shall have received from KPMG llp a letter, addressed to the Underwriter, the Forward Sellers and the Forward Counterparties, dated the Closing Date, to the effect that such certificate has carefully examined accountants reaffirm, as of the Closing Date, and as though made on the Closing Date, the statements made in the letter furnished by such accountants pursuant to paragraph (c) of this Section 7.
(f) On the Closing Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement Statement, the General Disclosure Package and the Prospectus Prospectus, any material adverse change or any development that is reasonably likely to involve a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and you shall have received a certificate of the Chairman and Chief Executive Officer or the President and Chief Operating Officer and the Chief Financial Officer of the Company, dated as of the Closing Date, to the effect that (i) there has been no such material adverse change or development, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Date, and (iii) the conditions precedent set forth in this Section 7 have been satisfied or waived.
(g) On the Closing Date, the Underwriter and the Forward Sellers shall have received from B▇▇▇▇ & H▇▇▇▇▇▇▇▇ llp, counsel for the Company, an opinion, addressed to the Underwriter, the Forward Sellers and the Forward Counterparties, dated as of the Closing Date, to the effect that:
(i) The representations Company has been duly organized and warranties is validly existing as a corporation in good standing under the laws of the Depositor in this Agreement are true and correct in all material respects on and as State of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;Ohio.
(ii) No The Company has all requisite corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus.
(iii) The Company is duly qualified to transact business and is in good standing in each jurisdiction in which it owns real property except where the failure to qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise.
(iv) If the Company has one or more significant subsidiaries, as defined in Rule 405 of the 1933 Act (each a “Significant Subsidiary”), each Significant Subsidiary has been duly incorporated or formed and is validly existing as a corporation, partnership, limited liability company or real estate investment trust in good standing or in full force and effect under the laws of the jurisdiction of its incorporation or formation, has corporate, partnership, limited liability company or real estate investment trust power and authority to own, lease and operate its properties and to conduct its business, and is duly qualified as a foreign corporation, partnership, limited liability company or real estate investment trust to transact business and is in good standing or full force and effect in each jurisdiction in which it owns real property, except where the failure to so qualify and be in good standing would not have a material adverse effect on the condition, financial or otherwise, of the Company and its subsidiaries considered as one enterprise.
(v) The outstanding capital shares of the Company, including the Securities (other than any Securities to be sold by the Company pursuant to Section 13) have been duly authorized, validly issued, and are fully paid and non-assessable. All of the issued and outstanding capital stock of the Company’s subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and, to the best of such counsel’s knowledge, are owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise.
(vi) Any Securities to be sold by the Company pursuant to Section 13 have been duly and validly authorized by all necessary corporate action and such Securities have been duly authorized for issuance and sale pursuant to this Agreement and such Securities, when issued and delivered pursuant to this Agreement against payment of the consideration therefor specified herein will be validly issued, fully paid and non-assessable.
(vii) None of the Securities will have been issued or sold in violation of or be subject to any preemptive or other similar rights of any shareholder of the Company arising by operation of law or under the Articles of Incorporation or Code of Regulations or, to the best of their knowledge, otherwise.
(viii) The Common Shares, if any, to be purchased by the Forward Counterparties pursuant to the Forward Agreements from the Company have been duly authorized by the Company for issuance and sale pursuant to the Forward Agreements and, when issued and delivered by the Company to the Forward Counterparties pursuant to the Forward Agreements against payment of the consideration set forth in the Forward Agreements, will be validly issued, fully paid and non-assessable and will not have been issued or sold in violation of or be subject to any preemptive or other similar rights of any shareholder of the Company arising by operation of law or under the Articles of Incorporation or Code of Regulations.
(ix) Each of the Forward Agreements has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, re-organization, moratorium or similar laws affecting enforcement of creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
(x) The Registration Statement is effective under the 1933 Act and, to the best of their knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no under the 1933 Act or proceedings for that purpose have been instituted or, to his knowledge, threatened; andtherefor initiated or threatened by the Commission.
(iiixi) Nothing has come to his attention that would lead him to believe that The Registration Statement and the Prospectus (other than the financial statements, related schedules and other financial and statistical data included or incorporated by reference in the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact Statement or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as to which no opinion need be rendered) as of their respective effective or issue dates, comply as to form in all material respects with the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make requirements for registration statements on Form S-3 under the statements therein, in 1933 Act and the light of the circumstances under which they were made, not misleading1933 Act Regulations.
(cxii) Deloitte & Touche LLP will have furnished Each document filed pursuant to the Underwriter a letter1934 Act (other than the financial statements, dated related schedules and other financial and statistical data included or incorporated by reference therein, as of the Closing Date, in form to which no opinion need be rendered) and substance satisfactory incorporated or deemed to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth be incorporated by reference in the Definitive Free Writing Prospectus complied when so filed as to form in all material respects with the 1934 Act and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation1934 Act Regulations.
(dxiii) The DepositorSecurities conform in all material respects to the statements relating thereto contained in the Prospectus.
(xiv) No facts have come to such counsel’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall attention that have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. caused such counsel to believe that (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”i) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.the Registration St
Appears in 1 contract
Sources: Underwriting Agreement (Developers Diversified Realty Corp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter's obligation to purchase the Certificates shall be subject to the accuracy in all respects following conditions:
6.1. No stop order suspending the effectiveness of the representations Registration Statement shall be in effect, and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Dateno proceedings for that purpose shall be pending or, to the accuracy knowledge of the statements Company, threatened by the Commission; and the Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2. Since __________, 200_ there shall have been no material adverse change (not in the ordinary course of business) in the condition of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:Company.
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP 6.3. The Company shall have furnished delivered to the Underwriter opinionsyou a certificate, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior or the Executive Vice President or any Vice President, dated of the Closing Date, Company to the effect that the signer of such certificate has carefully examined this Agreement, the Registration Statement Prospectus, the Pooling and the Prospectus Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(ia) The the representations and warranties of the Depositor Company in this Agreement and in the Pooling and Servicing Agreement are true and correct in all material respects on and as of respects; and
(b) the Closing Date with the same effect as if made on the Closing DateCompany has, and the Depositor has in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(ii) No stop order suspending 6.4. You shall have received the effectiveness opinions of Thacher Proffitt & Wood, special counsel for the Registration Statement has been issued Company, dated the C▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ sub▇▇▇▇tially to the effect set forth in Exhibit A and no proceedings Exhibit B.
6.5. You shall have received from counsel for that purpose have been instituted orthe Underwriter, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of an opinion dated the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, Date in form and substance satisfactory to the Underwriter.
6.6. The Underwriter shall have received from certified public accountants, a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they have performed certain specified procedures procedures, all of which have been agreed to by the Underwriter, as a result of which they have determined that such certain information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial captions "Description of the Mortgage Loans” Pool", "Pooling and elsewhere therein Servicing Agreement", "Description of the Certificates" and "Certain Yield and Prepayment Considerations" agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, Company excluding any questions of legal interpretation.
(d) 6.7. The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “"AAA” " by [each of] [Standard & Poor’s's Ratings Services] and [Fitch Ratings] and "Aaa" by [Moody's Investors Service, a division Inc.].
6.8. You shall have recei▇▇▇ ▇▇▇ opinion of The [Trustee's Counsel], dated the Closing Date, substantially to the effe▇▇ ▇▇▇ forth in Exhibit C.
6.9. You shall have received from Thacher Proffitt & Wood LLP, special counsel to the Company, and from ▇▇-▇▇▇▇▇ ▇▇▇▇▇▇-l t▇ ▇▇e Company, reliance letters with respect to any opinions delivered to [Standard & Poor's Ratings Services] and [Fitch Ratings] and [Moody's Investors Service, Inc.]. The Company will furnish ▇▇▇ ▇▇▇▇ Companiesh conformed copies of the above opinions, Inc. (“S&P”)certificates, “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) letters and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.documents as you reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (American Home Mortgage Assets LLC)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriter their opinion and negative assurance letter, dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in Exhibit B-1, (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President, Deputy General Counsel and Corporate Secretary of the Company, to have furnished to the Underwriter his opinion, dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in Exhibit B-2, and (iii) gaming counsel to the Company in each jurisdiction listed on Schedule II hereto, to have furnished to the Underwriter opinions, dated the Closing Date and addressed to the Underwriter, substantially to the effect set forth in Exhibit B-3;
(c) The Underwriter shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have furnished to LLP, counsel for the Underwriter Underwriter, such opinion or opinions, dated the Closing Date, substantially Date and addressed to the effect set forth in Exhibit A.Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(bd) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice Chairman of the Board or the President and the principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) on and as of the Closing Date with the same effect as if made on the Closing Date, and the Depositor Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and is outstanding and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has come been no material change or any development involving a prospective change, in or affecting the condition (financial or otherwise), business, results of operations or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(e) The Company shall have requested and caused Deloitte & Touche LLP to his attention that would lead him have furnished to believe that the Registration StatementUnderwriter, at the Execution Time and at the Closing Date, a “comfort letter” and a bring-down “comfort letter”, dated, respectively, as of the Execution Time and as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished each addressed to the Underwriter a letter, dated as of the Closing Date, and in form and substance satisfactory to the Underwriter and confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information contained in the Disclosure Package and the Prospectus, including any amendment or supplement thereto as of the date of the applicable letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), business, results of operations or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) Prior to the effect that they Closing Date, the Company shall have performed certain specified procedures as a result of which they have determined that furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationrequest.
(dh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Securities shall have been rated “AAA” listed and admitted and authorized for trading on the Nasdaq Global Select Market.
(j) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A-1 hereto from each of the entities listed on Schedule III hereto addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date or any settlement date pursuant to Section 3 hereof, by Standard the Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Poor’s, a division of The ▇▇▇▇▇▇-▇ LLP, counsel for the Underwriter, at ▇▇ ▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇, ▇▇▇ Investors Service▇▇▇▇, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P▇▇▇ ▇▇▇▇ ▇▇▇▇▇, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (CAESARS ENTERTAINMENT Corp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates shall be Firm Units and the Option Units, as the case may be, hereunder are subject to the accuracy in all respects of the representations and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇All filings required by Rule 424 and Rule 430B of the Rules and Regulations shall have been made. All material required to be filed by the Partnership pursuant to Rule 433(d) of the Rules and Regulations shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 of the Rules and Regulations. No stop order (i) suspending the effectiveness of the Registration Statement or (ii) suspending or preventing the use of the most recent Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Partnership or the Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representative.
(b) Subsequent to the Applicable Time, there shall not have occurred (i) any change, or any development involving a prospective change that would reasonably be expected to have a Material Adverse Effect, not contemplated by the Prospectus, which in the Representative’s opinion, would materially adversely affect the market for the Units, or (ii) any event or development relating to or involving any of the Plains Entities or any executive officer or director of any of such entities that makes any statement made in the Prospectus untrue or which, in the opinion of the Partnership and its counsel or the Underwriter and its counsel, requires the making of any addition to or change in the Prospectus in order to state a material fact required by the Securities Act or any other law to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, if amending or supplementing the Prospectus to reflect such event or development would, in the Representative’s opinion, materially adversely affect the market for the Units.
(c) The Representative shall have received on each applicable Delivery Date, an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have furnished to L.L.P., counsel for the Underwriter opinionsPartnership, dated the Closing Date, substantially applicable Delivery Date and addressed to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing DateUnderwriter, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties Each of the Depositor Partnership, the GP Entities and the Domestic Subsidiaries has been duly formed or incorporated and is validly existing in good standing as a limited partnership, limited liability company or corporation under the laws of its respective jurisdiction of formation or incorporation with full corporate, limited partnership or limited liability company power and authority, as the case may be, to own or lease its properties and to conduct its business, in each case in all material respects.
(ii) Each Domestic Subsidiary or GP Entity that serves as a general partner of another Domestic Subsidiary or GP Entity has full corporate or limited liability company power and authority, as the case may be, to serve as general partner of such Domestic Subsidiary or GP Entity, in each case in all material respects.
(iii) The GP Entities hold the general partner and membership interests described in the Registration Statement; all of such interests have been duly authorized and validly issued in accordance with their respective limited partnership or limited liability company agreement, as applicable, and all the membership interests in the General Partner are fully paid (to the extent required under the General Partner LLC Agreement) and nonassessable (except as such assessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act).
(iv) All of the outstanding shares of capital stock or other equity interests (other than general partner interests) of each Domestic Subsidiary (a) have been duly authorized and validly issued (in the case of an interest in a limited partnership or limited liability company, in accordance with the Organizational Documents of such Domestic Subsidiary), are fully paid (in the case of an interest in a limited partnership or limited liability company, to the extent required under the Organizational Documents of such Domestic Subsidiary) and nonassessable (except (i) in the case of an interest in a Delaware limited partnership or Delaware limited liability company, as such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware LP Act or Sections 18-607 and 18-804 of the Delaware LLC Act, as applicable and (ii) in the case of an interest in a limited partnership or limited liability company formed under the laws of another domestic state, as such nonassessability may be affected by similar provisions of such state’s limited partnership or limited liability company statute, as applicable) and (b) are owned, directly or indirectly, by the Partnership, free and clear of all Liens (A) in respect of which a financing statement under the Uniform Commercial Code of the States of Delaware or Texas naming the Partnership as debtor or, in the case of capital stock or other equity interests of a Domestic Subsidiary owned directly by one or more other Domestic Subsidiary, naming any such other Domestic Subsidiary as debtor(s), is on file in the office of the Secretary of State of the States of Delaware or Texas or (B) otherwise known to such counsel, without independent investigation, other than those created by or arising under the corporate, limited liability company or partnership laws of the jurisdiction of formation or incorporation of the respective Domestic Subsidiary, as the case may be.
(v) All outstanding general partner interests in each Domestic Subsidiary that is a partnership have been duly authorized and validly issued in accordance with the Organizational Documents of such Domestic Subsidiary and are owned, directly or indirectly, by the Partnership, free and clear of all Liens (A) in respect of which a financing statement under the Uniform Commercial Code of the States of Delaware or Texas naming the Partnership as debtor or, in the case of general partner interests of a Domestic Subsidiary owned directly by one or more other Domestic Subsidiary, naming any such other Domestic Subsidiary as debtor(s), is on file in the office of the Secretary of State of the States of Delaware or Texas or (B) otherwise known to such counsel, without independent investigation, other than those created by or arising under the partnership laws of the jurisdiction of formation of the respective Domestic Subsidiary, as the case may be.
(vi) The Firm Units (and/or Option Units, as applicable) to be issued and sold to the Underwriter by the Partnership pursuant to this Agreement and the limited partner interests represented thereby have been duly authorized by the Partnership Agreement and, when issued and delivered against payment therefor as provided in this Agreement, will be validly issued, fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-607 and 17-804 of the Delaware LP Act).
(vii) Except as have been waived or satisfied, there are no preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any interests in the Partnership pursuant to the Organizational Documents of the Partnership or any of the Incorporated Documents to which the Partnership is a party or by which the Partnership may be bound. Neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any Units or other securities of the Partnership pursuant to any of the documents or agreements included as exhibits to any of the Incorporated Documents, except such rights as have been waived or satisfied.
(viii) The Partnership has all requisite power and authority to issue, sell and deliver the Units, in accordance with and upon the terms and conditions set forth in this Agreement, the Partnership Agreement and the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(ix) This Agreement has been duly authorized and validly executed and delivered by the Partnership.
(x) At or before each applicable Delivery Date, the partnership agreement or limited liability company agreement, as applicable, of each of the Partnership, the Domestic Subsidiaries and the GP Entities has been duly authorized, executed and delivered by the parties thereto and is a valid and legally binding agreement of such parties thereto, enforceable against the parties thereto in accordance with their respective terms; provided, that, with respect to each such agreement, the enforceability thereof may be limited by (A) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws from time to time in effect affecting creditors’ rights and remedies generally and by general principles of equity (regardless of whether such principles are true considered in a proceeding in equity or at law) and correct (B) public policy, applicable law relating to fiduciary duties and indemnification and an implied covenant of good faith and fair dealing.
(xi) None of (A) the offering, issuance and sale by the Partnership of the Units, (B) the execution, delivery and performance of this Agreement by the Partnership or (C) the consummation of the transactions contemplated by this Agreement (1) constitutes or will constitute a violation of the Organizational Documents of the Partnership or any of the Domestic Subsidiaries or the GP Entities, (2) conflicts or will conflict with or constitutes or will constitute a breach or violation of, a change of control or a default under (or an event that, with notice or lapse of time or both, would constitute such an event) any document or agreement filed as an exhibit to the Registration Statement or any Incorporated Document (excluding for this purpose, (i) the Hedged Inventory Facility, (ii) the Credit Agreement dated as of August 19, 2011, as amended, by and among the Partnership, certain subsidiaries of the Partnership from time to time party thereto and Bank of America, N.A., as administrative agent, and the other lenders party thereto (the “PAA Facility”), (iii) the Second Amended and Restated Credit Agreement dated September 26, 2013, as amended, by and among Plains AAP, Citibank, N.A., as administrative agent, and the lenders party thereto (the “Plains AAP Facility”) and (iv) the 364-Day Credit Agreement dated January 16, 2015 (the “364-Day Facility”), by and among the Partnership, Bank of America, N.A., as administrative agent, and the lenders party thereto, (3) results or will result in any violation of the Delaware LP Act, the Delaware LLC Act, the Delaware General Corporation Law (the “DGCL”), the laws of the State of Texas or federal law, or (4) results or will result in the creation or imposition of any Lien upon any property or assets of any of the Partnership, the Domestic Subsidiaries or the GP Entities, which conflicts, breaches, violations or defaults in the case of clauses (2), (3) or (4) would reasonably be expected to have a Material Adverse Effect or materially impair the ability of the Partnership to consummate the transactions contemplated by this Agreement, it being understood that such counsel need not express an opinion in clause (3) of this paragraph (xi) with respect to any securities or other anti-fraud law.
(xii) No consent, approval, authorization, filing with or order of any federal, Delaware or Texas court, governmental agency or body having jurisdiction over the Partnership, the GP Entities, the Domestic Subsidiaries or any of their respective properties is required in connection with the transactions contemplated by this Agreement, the execution, delivery and performance of this Agreement by the Partnership and the consummation of the transactions contemplated by this Agreement, except (A) such as may be required under the blue sky laws of any jurisdiction or the by-laws and rules of FINRA in connection with the purchase and distribution by the Underwriter of the Units in the manner contemplated herein and in the Pricing Disclosure Package and the Prospectus (as to which such counsel need not express any opinion), (B) such that the failure to obtain would not reasonably be expected to have a Material Adverse Effect or materially impair the ability of the Partnership to consummate the transactions contemplated by this Agreement and (C) such other that have been obtained or taken and are in full force and effect.
(xiii) The statements in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the captions “Description of Our Common Units,” “Cash Distribution Policy” and “Description of Our Partnership Agreement,” insofar as such statements purport to summarize certain provisions of documents and legal matters referred to therein, are accurate in all material respects, subject to the qualifications and assumptions stated therein; and the Units, the Common Units and the Incentive Distribution Rights conform in all material respects on to the descriptions thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(xiv) The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. that is filed as of Exhibit 8.1 to the Closing Date with Registration Statement is confirmed and the same effect Underwriter may rely upon such opinion as if made it were addressed to them.
(xv) The Registration Statement became effective under the Securities Act upon its filing on the Closing DateSeptember 27, and the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior 2012; to the Closing Date;
(ii) No knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, or threatened by the Commission; and any required filing of the Prospectus pursuant to his knowledge, threatened; andRule 424(b) of the Rules and Regulations has been made in the manner and within the time period required by such Rule.
(iiixvi) Nothing The Registration Statement, the Pricing Disclosure Package and the Prospectus (except for the financial statements and the notes and the schedules thereto and the other financial information included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus, as to which such counsel need not express an opinion) comply as to form in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder.
(xvii) None of the Plains Entities is now, and after sale of the Units to be sold by the Partnership hereunder and application of the net proceeds from such sale as described in the Pricing Disclosure Package and the Prospectus under the caption “Use of Proceeds,” none of the Plains Entities will be, an “investment company” as such term is defined in the Investment Company Act. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of GP LLC and the Partnership, representatives of the independent public accountants of GP LLC and the Partnership and the Underwriter’s representatives and counsel, at which the contents of the Registration Statement, the Pricing Disclosure Package and the Prospectus and related matters were discussed, and although such counsel has not independently verified, is not passing on, and is not assuming any responsibility for the accuracy, completeness or fairness of the statements contained in, the Registration Statement, the Pricing Disclosure Package and the Prospectus (except to the extent specified in opinion (xiii) above), on the basis of the foregoing, no facts have come to his the attention of such counsel that would lead him them to believe that that:
(A) the Registration Statement, as of the Closing most recent Effective Date, contains any contained an untrue statement of a material fact or omits omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading, or that ;
(B) the ProspectusPricing Disclosure Package, as of the Closing DateApplicable Time, contains any included an untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.orde
Appears in 1 contract
Sources: Underwriting Agreement (Plains All American Pipeline Lp)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Offered Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof 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 Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP The Underwriter shall have furnished received from Deloitte & Touche LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter opinionsand counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Date, substantially updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the effect set forth in Exhibit A.Underwriter and counsel for the Underwriter.
(b) The Depositor 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 Offered Certificates shall have furnished been duly taken and made. At and prior to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to no stop order suspending the effect that the signer effectiveness of such certificate has carefully examined the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the Prospectus knowledge of the Company or the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and that:
delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or the Servicer which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Offered Certificates; (ii) any downgrading in the rating of the Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of the Servicer (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, North Carolina or New York 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 Underwriter, 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 Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of an executive officer of the Company in which such officer shall state that, to the best of such officer's knowledge after reasonable inspection, (i) the representations and warranties of the Depositor Company contained in this Agreement the Basic Documents are true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, Date and (ii) the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(iie) No stop order suspending The Underwriter shall have received an opinion of counsel for the effectiveness Company, which may be an opinion of in-house counsel to the Registration Statement has been issued Company, dated the Closing Date, in form and no proceedings substance satisfactory to the Underwriter and counsel for that purpose have been instituted or, to his knowledge, threatened; andthe Underwriter.
(iiif) Nothing has come to his attention that would lead him to believe that the Registration StatementThe Underwriter shall have received a certificate of an executive officer of BANA, dated as of the Closing Date, to the effect that, to the ▇▇▇▇ of such officer's knowledge, (i) the representations and warranties contained in the Mortgage Loan Purchase Agreement are true and correct with the same force and effect as though made on and as of the Closing Date and (ii) such officer has reviewed the Final Prospectus as amended or supplemented to the Closing Date and nothing has come to such officer's attention that would lead such officer to believe that the Final Prospectus as amended or supplemented, insofar as it relates to BANA or the Mortgage Loans originated or acquired by BANA, contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading.
(g) The Underwriter shall have received an opinion of counsel for BANA, or which may be an opinion of in-house counsel to BANA, dated the Closing Date, in form and substance satisfactor▇ ▇▇ the Underwriter and counsel for the Underwriter.
(h) The Underwriter shall have received an opinion of Cadwalader, Wickersham & Taft LLP, special counsel to the Compa▇▇, ▇▇▇▇▇ opinion ▇▇▇ rel▇ ▇▇, and assume the accuracy of, the opinions described in paragraphs (e) and (g) above, dated the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(i) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(j) The Underwriter shall have received from Cadwalader, Wickersham & Taft LLP, special counsel for the Underwriter, a l▇▇▇▇▇ ▇▇▇▇d the ▇losing Date with respect to the Final Prospectus, substantially to the effect that nothing has come to such counsel's attention in the course of its review of the Final Prospectus which causes it to believe that the Final Prospectus, as of the date of the Prospectus Supplement or the Closing Date, contains contained any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(ck) Deloitte & Touche LLP will The Underwriter shall have furnished received an opinion of reasonably acceptable counsel to the Underwriter a letterTrustee, dated as of the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(l) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(m) At the Closing Date, the Certificates and the Pooling Agreement will conform in all material respects to the 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, in the opinion of counsel to the Underwriter, 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 effect authorization, form and validity of this Agreement, the Pooling Agreement, the Mortgage Loan Purchase Agreement, the Certificates, 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 have performed certain specified procedures as a result may reasonably request to enable them to pass upon such matters. The Company will provide or cause to be provided to the Underwriter such conformed copies of which they have determined that such information opinions, certificates, letters and documents as the Underwriter may reasonably request of an accountingrequest. All opinions, financial letters, evidence and certificates mentioned above or statistical nature set forth elsewhere in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees this Agreement shall be deemed to be in compliance with the accounting records of provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding Underwriter. If any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates condition specified in this Section 6 shall not have been rated “AAA” fulfilled when and as required to be fulfilled, this Agreement may be terminated by Standard & Poor’sthe Underwriter by notice to the Company at any time at or prior to the Closing Date, a division and such termination shall be without liability of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.any party to any other party except as provided in Section 7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Alternative Loan Trust 2006-9)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter, as to purchase the Certificates Normal APEX to be purchased at each Time of Delivery, shall be subject to the accuracy in all respects of the representations and warranties on the part of each of the Depositor Guarantor and the Trust contained herein as of the date hereof and the Closing Dateat and as of such Time of Delivery, to the accuracy of the statements of the Depositor Guarantor and the Trust made in any Officers’ certificates pursuant to the provisions hereof, to the performance by each of the Depositor Guarantor and the Trust of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP The Prospectus shall have furnished been filed with the Commission pursuant to Rule 424(b) under the Underwriter opinionsAct within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a); the final term sheet contemplated by Section 5(A)(a), dated and any other material required to be filed by the Closing DateGuarantor or the Trust pursuant to Rule 433(d) under the Act, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date been filed with the same effect as if made on Commission within the Closing Date, and 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 the Closing Date;
(ii) No applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement has or any part thereof shall have been issued and no proceedings proceeding for that purpose shall have been instituted or, initiated or threatened by the Commission and no notice of objection of the Commission to his knowledge, threatenedthe use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; andno stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(iiib) Nothing has come J▇▇▇▇ Day, counsel for the Guarantor, shall have furnished to his attention that would lead him the Underwriter an opinion, dated such Time of Delivery, with respect to believe that such matters as the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingUnderwriter may reasonably require.
(c) Deloitte & Touche LLP will The Guarantor shall have furnished to the Underwriter a letteran opinion, dated such Time of Delivery, of National City Corporation Law Department, counsel for the Guarantor, with respect to such matters as the Underwriter may reasonably require.
(d) R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to the Guarantor and the Trust, shall have furnished to the Underwriter an opinion, dated such Time of Delivery, to the effect set forth in Annex I.
(e) The Underwriter shall have received from S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated such Time of Delivery, with respect to such matters as the Underwriter may reasonably require. S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP may rely as to those matters that relate to the Indenture Trustee, the Guarantee Trustee, the Property Trustee or the Collateral Agent, upon the certificate or certificates of such entities.
(f) On the date of the Closing DateProspectus at a time prior to the execution of this Agreement, at 9:30 A.M., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at such Time of Delivery, (1) Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, containing statements and information of the Underwriter, type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect that they have performed financial statements, certain specified procedures as a result of which they have determined that such financial information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth contained in the Definitive Free Writing Prospectus Registration Statement and the Prospectus Supplement under and such other information specified therein and (2) the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records Company shall have furnished or caused to be furnished to you a certificate or certificates of the Depositor and, where applicable, the Mortgage Loan files Chief Financial Officer of the DepositorCompany, excluding any questions dated the respective dates of legal interpretationdelivery thereof, in form and substance satisfactory to you, containing statements and information with respect to the financial statements, certain financial information contained in the Registration Statement and the Prospectus and such other information specified therein, based on an examination of the Company’s financial records and schedules undertaken by the Chief Financial Officer or members of his staff who are responsible for the Company’s financial and accounting matters.
(dg) Neither the Guarantor nor any of its Significant Subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, other than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Guarantor or any of its subsidiaries or any change, or any development that is reasonably likely to involve a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Guarantor and its subsidiaries, other than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Underwriter so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Normal APEX on the terms and in the manner contemplated in the Prospectus.
(h) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4Guarantor shall have complied with the provisions of the first sentence of Section 5(A)(d) with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(i) On or after the Applicable Time, Class A-1, Class A-2 and Class A-3 Certificates the Normal APEX shall have been rated accorded a rating of not less than “AAABBB+” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (’s Ratings Service and not less than “S&P”), “AAABaa1” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇M▇▇▇▇’▇ Investors Service, Inc. Inc.
(j) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Guarantor’s debt securities or preferred stock by any “Moody’s”). nationally recognized statistical rating organization,” as that term is defined in Section 3(a)(62) of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Guarantor’s debt securities or preferred stock.
(k) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Guarantor’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of G▇▇▇▇▇▇, Sachs & Co. makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Normal APEX being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus.
(l) The Class M-1 Certificates Normal APEX being delivered at each Time of Delivery shall have been rated “AA+” by S&Pduly listed, “AA+” by Fitchsubject to notice of issuance, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates on the New York Stock Exchange, or application thereto for such listing shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS made.
(m) The Guarantor and “Aa2” by Moody’s. The Class M-3 Certificates the Trust shall have been rated “AA-” furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Guarantor and trustees of the Trust satisfactory to you as to the accuracy of the representations and warranties of the Guarantor and the Trust herein at and as of such time, as to the performance by S&Pthe Guarantor and the Trust of all of their respective obligations hereunder to be performed at or prior to such time, “AA-” by Fitch, “AA as to the matters set forth in subsections (low)” by DBRS a) and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS g) of this Section and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter's obligation to purchase the Certificates shall be subject to the accuracy in all respects following conditions:
6.1 No stop order suspending the effectiveness of the representations Registration Statement shall be in effect, and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Dateno proceedings for that purpose shall be pending or, to the accuracy knowledge of the statements Company, threatened by the Commission; and the Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Since _____, 20__ there shall have been no material adverse change (not in the ordinary course of business) in the condition of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:Company.
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP 6.3 The Company shall have furnished delivered to the Underwriter opinionsa certificate, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, a Senior Vice President or any a Vice President, dated President of the Closing Date, Company to the effect that the signer of such certificate has carefully examined this Agreement, the Registration Statement Prospectus, the Pooling and the Prospectus Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(ia) The the representations and warranties of the Depositor Company in this Agreement and in the [Pooling and Servicing] [Trust] Agreement are true and correct in all material respects on and as of respects; and
(b) the Closing Date with the same effect as if made on the Closing DateCompany has complied, and the Depositor has complied in all material respects, with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(ii) No stop order suspending 6.4 The Underwriter shall have received the effectiveness opinion of ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw LLP special counsel for the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of Company dated the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, Date in form and substance reasonably satisfactory to the Underwriter.
6.5 The Underwriter shall have received from _____________, counsel for the Underwriter, an opinion dated the Closing Date in form and substance reasonably satisfactory to the Underwriter.
6.6 The Underwriter shall have received from ___________, certified public accountants, a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they have performed certain specified procedures procedures, all of which have been agreed to by the underwriter, as a result of which they have determined that such certain information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “captions "Description of the Mortgage Pool", ["Pooling and Servicing Agreement"] ["The Initial Mortgage Loans” Trust Agreement"], "Description of the Certificates" and elsewhere therein "Certain Yield and Prepayment Considerations" agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, Company excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Sources: Underwriting Agreement (Stanwich Asset Acceptance CO LLC)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Ledgewood PC, counsel for the Company, to have furnished to the Underwriter its opinions and negative assurance letter dated the Closing Date and any settlement date and addressed to the Underwriter in form and substance acceptable to the Underwriter.
(c) The Underwriter shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP LLP, counsel for the Underwriter, its opinions and negative assurance letter, dated the Closing Date and any settlement date and addressed to the Underwriter, and the Company shall have furnished to such counsel such documents as they request for the Underwriter opinions, dated the Closing Date, substantially purpose of enabling them to the effect set forth in Exhibit A.pass upon such matters.
(bd) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice President Chief Executive Officer or any Vice PresidentChief Financial Officer of the Company, dated the Closing DateDate and any settlement date, to the effect that the each signer of such certificate has carefully examined the Registration Statement and each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, as well as each road show used in connection with the Offering, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has come been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to his attention that would lead him to believe the Underwriter a certificate signed by the Secretary of the Company, dated the Closing Date and any settlement date, certifying (i) that the Registration StatementCharter is true and complete, has not been modified and is in full force and effect, (ii) that the resolutions relating to the Offering contemplated by this Agreement are in full force and effect and have not been modified, (iii) copies of all written correspondence between the Company or its counsel and the Commission, and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(f) The Company shall have requested and caused Withum to have furnished to the Underwriter, at the Execution Time and at the Closing Date, and any settlement date, letters, dated respectively as of the Execution Time and as of the Closing Date, contains and any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Datesettlement date, in form and substance satisfactory to the Underwriter, confirming that they are a registered public accounting firm that is independent with respect to the effect Company within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder, that they have in their opinion the audited financial statements and financial statement schedules included in the Registration Statement, the Statutory Prospectus and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the Commission, and reporting on the other procedures performed certain specified procedures by them in respect of the financial information in the Registration Statement, the Statutory Prospectus and the Prospectus. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the applicable letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as a result of which they information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have determined been (i) any change or decrease specified in the letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(i) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, satisfactory evidence of which shall have been provided to the Underwriter.
(j) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Registration Rights Agreement, the Units Subscription Agreement, the Insider Letter and the Services Agreement.
(k) At least one (1) Business Day prior to the Closing Date, the Sponsor shall have caused an agreed amount of proceeds from the sale of the Private Placement Units to be deposited into the Trust Account.
(l) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened.
(m) Prior to the Closing Date and any settlement date, the Company shall have furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records request. If any of the Depositor andconditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, where applicableor if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Mortgage Loan files Closing Date or any applicable settlement date by the Underwriter. Notice of such cancellation shall be given to the Depositor, excluding any questions Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard ▇▇▇▇▇▇ & Poor’s, a division of The ▇▇▇▇▇▇-▇▇ LLP, counsel for the Underwriter, at ▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇ ▇▇▇▇▇’▇, ▇▇▇ Investors Service▇▇▇▇, Inc. (“Moody’s”)▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. The Class M-1 Certificates shall have been rated “AA+” by S&P▇▇▇▇▇▇▇▇, “AA+” by Fitchunless otherwise indicated herein, “AA (high)” by DBRS on the Closing Date and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.any applicable settlement date.
Appears in 1 contract
Sources: Underwriting Agreement (Ftac Zeus Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Certificates Bonds shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Issuer and the Company contained herein as of the date hereof Execution Time and the Closing Date and on the part of the Company contained in Article 3 of the Sale Agreement and in Section 6.01 of the Servicing Agreement as of the Closing Date, to the accuracy of the statements of the Depositor Issuer and the Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Issuer and the Company of its their obligations hereunder to be performed on or prior to the Closing Date and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM (Eastern Daylight Time), on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM (Eastern Daylight Time) on such date, or (ii) 12:00 Noon (Eastern Daylight Time) on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM (Eastern Daylight Time) on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and 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 threatened.
(b) The Underwriter shall have received opinions of counsel for the Company, portions of which may be delivered by Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have furnished to LLP, outside counsel for the Company, portions of which may be delivered by ▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇, Professional Association, outside counsel for the Company, and portions of which may be delivered by in-house counsel for the Company, as the Underwriter opinionsmay agree, each dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect that:
(i) the Company is a validly existing corporation in good standing under the laws of the jurisdiction in which it is chartered or organized and has all requisite corporate power and authority to own its properties, conduct its business as described in the Registration Statement and the Prospectus, and to execute, deliver and perform its obligations under this Agreement, the Sale Agreement, the Servicing Agreement and the Administration Agreement;
(ii) the Sale Agreement, the Servicing Agreement and the Administration Agreement have been duly authorized, executed and delivered by, and constitute legal, valid and binding instruments enforceable against, the Company in accordance with their terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws or equitable principles affecting creditors' rights generally from time to time in effect); this Agreement has been duly authorized, executed and delivered by the Company;
(iii) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its affiliates or challenging the Finance Order or the collection of the RRB Charges or the use and enjoyment of RRB Property under the Statute of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required;
(iv) no consent, approval, authorization or order of any court or governmental agency or body is required to be obtained by the Company for the consummation of the transactions contemplated herein, except such as have been obtained in accordance with New Hampshire RSA Chapter 369-B (the "Statute"), the NHPUC Regulations (as defined in Section 1.01 of the Servicing Agreement), the Public Utility Holding Company Act of 1935, as amended (the "1935 Act") and the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Bonds by the Underwriter and such other approvals (specified in such opinion) as have been obtained;
(v) neither the execution and delivery of this Agreement, the Sale Agreement, the Servicing Agreement, the Administration Agreement nor the consummation of the transactions contemplated by this Agreement, the Sale Agreement, the Servicing Agreement or the Administration Agreement nor the fulfillment of the terms of this Agreement, the Sale Agreement, the Servicing Agreement or the Administration Agreement by the Company, will (A) conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time) a default under the articles of incorporation, bylaws or other organizational documents of the Company, or conflict with or breach any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, material agreement or other material instrument to which the Company is a party or by which the Company is bound, (B) result in the creation or imposition of any lien upon any properties of the Company pursuant to the terms of any such indenture, agreement or other instrument (other than as contemplated by the Basic Documents and RSA 369-B:7), or (C) violate any New Hampshire or federal law or any order, rule or regulation applicable to the Company of any New Hampshire or federal court or regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Company, or any of its properties; and
(vi) upon the delivery of the fully executed Sale Agreement to the Issuer and the payment of the purchase price of the RRB Property by the Issuer to the Seller pursuant to the Sale Agreement, then (A) the transfer of the RRB Property by the Seller to the Issuer pursuant to the Sale Agreement conveys the Seller's right, title and interest in the RRB Property to the Issuer and will be treated under the laws of the State of New Hampshire as an absolute transfer of all of the Seller's right, title, and interest in the RRB Property, other than for federal and state income tax purposes, (B) such transfer of the RRB Property is perfected within the meaning of RSA 369-B:6, VI, (C) assuming that they the Issuer does not have performed certain notice or knowledge of any conflicting assignment of the RRB Property, such transfer has priority over any other assignment or transfer of the RRB Property, and (D) the RRB Property is free and clear of all liens created prior to its transfer to the Issuer pursuant to the Sale Agreement; the Seller's first mortgage indenture explicitly excludes accounts receivables and contracts from its lien and, therefore, the RRB Property is not subject to such lien;
(vii) no further action with respect to the recording or filing of the Sale Agreement, any agreements supplemental thereto, any financing statements, any continuation statements, or any other documents or filings will be necessary prior to March 31, 2003, to perfect the transfer of the RRB Property by the Company to the Issuer pursuant to the Sale Agreement; and
(viii) the Indenture is enforceable against the Trustee in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other similar laws or equitable principles affecting creditors' rights generally from time to time in effect). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New Hampshire or the United States, to the extent deemed proper and specified procedures in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriter and (B) as a result to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Underwriter shall have received opinions of counsel for the Issuer and the Company, portions of which they have determined that such information may be delivered by Day, ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, outside counsel for the Issuer and the Company, portions of which may be delivered by ▇▇▇▇, Young and Pignatelli, Professional Association, outside counsel for the Issuer and the Company, and portions of which may be delivered by in-house counsel, as the Underwriter may reasonably request agree, and portions of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” which may be delivered by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service& Finger, Inc. P.A., special Delaware counsel for the Issuer, each dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect that:
(“Moody’s”). The Class M-1 Certificates shall i) the Issuer has been duly formed and is validly existing in good standing as a limited liability company under the laws of the State of Delaware, with all necessary limited liability company power and authority to execute, deliver and perform its obligations under this Agreement, the Sale Agreement, the Servicing Agreement, the Indenture, the Administration Agreement, the Fee and Indemnity Agreement and the Bonds and is registered as a foreign limited liability company and is in good standing in the State of New Hampshire;
(ii) the Sale Agreement, the Servicing Agreement, the Indenture, the Administration Agreement and the Fee and Indemnity Agreement have been rated “AA+” by S&Pduly authorized, “AA+” by Fitchexecuted and delivered by, “AA and constitute legal, valid and binding instruments enforceable against, the Issuer in accordance with their terms (highsubject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws or equitable principles affecting creditors' rights generally from time to time in effect)” by DBRS ; and “Aa1” by Moody’s. The Class M-2 Certificates shall the Bonds have been rated “AA” duly authorized and when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by S&Pthe Underwriter in accordance with the terms of this Agreement, “AA+” will constitute legal, valid and binding obligations of the Issuer entitled to the benefits of the Indenture (subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws or equitable principles affecting creditors' rights generally from time to time in effect); this Agreement has been duly authorized, executed and delivered by Fitchthe Issuer;
(iii) to the extent described in the Final Prospectus, “AA” the Sale Agreement, the Servicing Agreement, the Indenture, the Administration Agreement, the Fee and Indemnity Agreement, the LLC Agreement and the Bonds conform to the descriptions thereof contained therein;
(iv) the Indenture has been duly qualified under the Trust Indenture Act;
(v) to the knowledge of such counsel, after having made inquiry of officers of the Issuer, but without having made any other investigation, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Issuer or challenging the Bonds, the Finance Order, the settlement order issued by DBRS the NHPUC on September 8, 2000 (the "Settlement Order") or the collection of the RRB Charge or the use and “Aa2” by Moody’senjoyment of RRB Property under the Statute of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document relating to the Issuer, the Bonds, the Statute or the Finance Order of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required; and the statements included in the Final Prospectus under the headings "Risk Factors -- Bondholders could experience payment delays or losses as a result of amendment, repeal or invalidation of the securitization statute or breach of the state pledge," "Energy Deregulation and New Market Structure in New Hampshire," (to the extent the Statute, the Finance Order, the Settlement Order, or the Agreement to Settle PSNH Restructuring between the Governor of New Hampshire, the Company, the NHPUC and the other parties named therein, dated August 2, 1999, and such agreement as revised and conformed in compliance with NHPUC Order No. 23,549 (together, the "Settlement Agreement") is described), "The Class M-3 Certificates shall have been rated “AA-” by S&PIssuer," "Servicing" (to the extent the Servicing Agreement or the Finance Order is described), “AA-” by Fitch"Description of the Bonds," "The Seller and Servicer" (other than under the subheading "Billing and Collections," as to which such counsel need express no opinion), “AA "Description of the RRB Property," "ERISA Considerations" and "Risk Factors - Bankruptcy and Creditors' Rights Issues" (lowread together with "Description of the RRB Property - Bankruptcy and Creditors' Rights Issues")” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitchto the extent that they constitute matters of New Hampshire or federal law or legal conclusions with respect thereto, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.fairly summarize the matters described therein;
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates under this Agreement shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor contained Company and the Trust set forth herein as of the date hereof and the Closing Date, and if applicable, as of the Option Closing Date, as the case may be, to the accuracy of the statements of the Depositor made in any Officers’ certificates pursuant to the provisions hereofOfferors' directors and officers, to the performance by the Depositor Company and the Trust of its their obligations hereunder hereunder, and to the following additional conditions, except to the extent expressly waived in writing by the Underwriter:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP The Registration Statement and all post-effective amendments thereto shall have furnished to been declared effective by the Underwriter opinionsCommission no later than 5:30 p.m. Eastern Time, dated on the Closing Datedate of this Agreement, substantially to the effect set forth in Exhibit A.
(b) The Depositor or such later time as shall have furnished been consented to the Underwriter a certificate of the Depositor, signed by the PresidentUnderwriter, Senior Vice President or but in any Vice Presidentevent not later than 5:30 p.m., dated Eastern Time, on the Closing Date, to third full business day following the effect that date hereof; if the signer of such certificate has carefully examined Offerors omitted information from the Registration Statement and at the time it became effective in reliance on Rule 430A under the Securities Act, the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date shall have been filed with the same effect as if made on Commission in compliance with Rule 424(b) and Rule 430A under the Closing Date, and 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 the Closing Date;
(ii) No Securities Act; no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or any amendment or supplement thereto shall have been instituted issued; no proceeding for the issuance of such an order shall have been initiated or shall be pending or, to his knowledgethe knowledge of the Offerors or the Underwriter, threatenedthreatened or contemplated by the Commission; andand any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Underwriter and complied with to the Underwriter's satisfaction.
(iiib) Nothing has come to his attention that would lead him to believe that The Preferred Securities, the Registration StatementGuarantee, as of and the Closing Date, contains any untrue statement of a material fact Subordinated Debentures shall have been qualified or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingregistered for sale, or that subject to an available exemption from such qualification or registration, under the Prospectus, Blue Sky Laws of such jurisdictions as of shall have been reasonably specified by the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make Underwriter and the statements therein, in offering contemplated by this Agreement shall have been cleared by the light of the circumstances under which they were made, not misleadingNASD.
(c) Deloitte & Touche LLP will have furnished to Since the Underwriter a letter, dated dates as of which information is given in the Closing DateRegistration Statement:
(i) There shall not have been any adverse change, or any development involving a prospective adverse change, in form and substance satisfactory the ability of the Company or any Subsidiary to the Underwriterconduct their respective business (whether by reason of any court, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accountinglegislative, financial other governmental action, order, decree, or statistical nature set forth otherwise), or in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.general
Appears in 1 contract
Sources: Underwriting Agreement (American Bancshares Inc \Fl\)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Securities shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and 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 threatened.
(b) The Company shall have furnished to the Underwriter opinionsthe opinion of Good▇▇▇, dated ▇▇octer & Hoar ▇▇▇, counsel for the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice PresidentCompany, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations the Company has been duly incorporated and warranties is validly existing as a corporation in good standing under the laws of the Depositor jurisdiction in this Agreement are true which it is chartered or organized, with full corporate power and correct authority to own its properties and conduct its business as described in all material respects on and as of the Closing Date with the same effect as if made on the Closing DateFinal Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the Depositor laws of each jurisdiction listed in a schedule to such counsel's opinion (which schedule shall list all jurisdictions in which the Company has complied with all represented to such counsel that the agreements and satisfied all the conditions on its part to be performed Company conducts material business or satisfied at owns or prior to the Closing Dateleases material property);
(ii) No the Securities conform in all material respects to the description thereof contained in the Final Prospectus; the certificates for the Securities are in valid and sufficient form;
(iii) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); and the Securities have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriter pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;
(iv) the 10-3/4% Notes Supplemental Indenture has been duly and validly authorized by all necessary action on the part of the Company and the guarantors of the 10-3/4% Notes, has been duly executed and delivered by or on behalf of the Company and such guarantors and constitutes the legally valid and binding obligation of the Company and such guarantors, enforceable against each of them in accordance with its terms (except as such enforcement may be subject to or limited by bankruptcy, insolvency and general principles of equity);
(v) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be described in the Registration State ment which is not so described in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the descriptions of laws, regulations and rules as set forth under the captions "Business--Environmental Regulations" and "Certain United States Federal Income Tax Consequences", and the descriptions of legal and governmental proceedings under the headings "Summary--Recent Industrial Accident" and Business--Legal Proceedings" have been reviewed by such counsel and are accurate summaries in all material respects of such information;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, order or decree, license, authorization or validation of, or filing with the Commission or any other United States or Massachusetts governmental authority is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriter in the manner contemplated in this Agreement and in the Final Prospectus;
(ix) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will (A) conflict with or result in a violation of any of the provisions of the certificate of incorporation or by-laws of the Company, (B) conflict with or violate in any material respect any law, rule or regulation of the United States of America or the Commonwealth of Massachusetts (other than state securities or blue sky laws or state laws or regulations relating to broker-dealer registration that may be applicable, as to which such counsel need express no opinion), or any order, judgment or decree of any court or other governmental authority known to such counsel that is applicable to Company or any of its subsidiaries or by which any property or asset of Company or any of its subsidiaries is or may be bound, or (C) result in a breach of any of the material terms or provisions of, or constitute a default (with or without due notice and/or lapse of time) under, any document filed with or incorporated by reference in any report filed by the Company under the Exchange Act; and
(xi) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and issued, no proceedings for that purpose have been instituted or, to his knowledge, or threatened; and the Registration Statement and the Final Prospectus (other than the financial statements and supporting schedules other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder. In addition, such counsel shall state that it has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Underwriter at which the contents of the Registration Statement and the Final Prospectus were discussed and
(iii) Nothing has , on the basis of the foregoing, no facts have come to his such counsel's attention that would lead him hat causes it to believe that that, on the Effective Date or at the Execution Time, the Registration Statement, as of the Closing Date, Statement contains or contained any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, Final Prospectus as of its date and on the Closing Date, contains Date includes any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (in each case, other than the financial statements and supporting schedules other financial and statistical information contained therein, and the Statement of Eligibility on Form T-1 included as an exhibit to the Registration Statement, as to which such counsel need express no opinion). In rendering such opinion, such counsel may rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date. In rendering the opinion set forth in paragraph (iii) above as to matters involving the application of laws of the State of New York, such counsel may rely upon the opinion of Cravath, Swaine & Moor▇ ▇▇▇erred to in Section 6(d) hereof. In rendering the opinion set forth in paragraph (iv) above, such counsel may assume that the laws of the State of New York conform to the laws of the Commonwealth of Massachusetts.
(c) Deloitte & Touche LLP will The Company shall have furnished to the Underwriter a letter, dated as the opinion of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The Wall▇▇▇ ▇. ▇▇▇▇▇▇-▇, ▇▇., ▇▇ Companies▇neral Counsel of the Company, Inc. dated the Closing Date, to the effect that:
(“S&P”i) each of the Company and the Material Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) all the outstanding shares of capital stock of each Material Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus or on Schedule A hereto, all outstanding shares of capital stock of the Material Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances;
(iii) the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities;
(iv) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(v) neither the execution and delivery of the Indenture, the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will (A) conflict with or result in a violation of any of the provisions of the certificate of incorporation or by-laws of the Company, (B) conflict with or violate in any material respect any law, rule or regulation of the United States of America or the Commonwealth of Massachusetts (other than state securities or blue sky laws or state laws or regulations relating to broker-dealer registration that may be applicable, as to which such counsel need express no opinion), “AAA” or any order, judgment or decree of any court or other governmental authority known to such counsel that is applicable to Company or any of its subsidiaries or by Fitch Ratingswhich any property or asset of Company or any of its subsidiaries is or may be bound, Inc. or (“Fitch”C) result in a breach of any of the terms or provisions of, or constitute a default (with or without due notice and/or lapse of time) under, any agreement to which the Company or any of its subsidiaries is a party or bound, except, in the case of clause (C), “AAA” for such breaches or defaults which would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(vi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by Dominion Bond Rating Service (“DBRS”) or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be described in the Registration Statement which is not so described in the Final Prospectus, and “Aaa” by ▇▇▇▇▇’▇ Investors Servicethere is no franchise, Inc. (“Moody’s”). The Class M-1 Certificates shall contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the descriptions of laws, regulations and rules as set forth under the captions "Business--Environmental Regulations" and "Certain United States Federal Income Tax Consequences", and the descriptions of legal and governmental proceedings under the headings "Summary--Recent Industrial Accident" and Business--Legal Proceedings" have been rated “AA+” reviewed by S&Psuch counsel and are accurate summaries in all material respects of such information;
(vii) to the knowledge of such counsel, “AA+” by Fitchno stop order suspending the effectiveness of the Registration Statement has been issued, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall no proceedings for that purpose have been rated “AA” by S&Pinstituted or threatened, “AA+” by Fitchand the Registration Statement and the Final Prospectus (other than the financial statements and supporting schedules other financial and statistical information contained therein, “AA” by DBRS as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS the Trust Indenture Act and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS the respective rules thereunder; and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.such counsel has no reason to believe that on the Effective Date or at the Execution Time the Regis-
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter's obligation to purchase the Certificates shall be subject to the accuracy in all respects following conditions:
6.1 No stop order suspending the effectiveness of the representations Registration Statement shall be in effect, and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Dateno proceedings for that purpose shall be pending or, to the accuracy knowledge of the statements Company, threatened by the Commission; and the Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Since _________ 1, ____ there shall have been no material adverse change (not in the ordinary course of business) in the condition of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:Company.
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP 6.3 The Company shall have furnished delivered to the Underwriter opinionsyou a certificate, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, a Senior Vice President or any a Vice President, dated President of the Closing Date, Company to the effect that the signer of such certificate has carefully examined this Agreement, the Registration Statement Prospectus, the Pooling and the Prospectus Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(ia) The the representations and warranties of the Depositor Company in this Agreement and in the Pooling and Servicing Agreement are true and correct in all material respects on and as of respects; and
(b) the Closing Date with the same effect as if made on the Closing DateCompany has, and the Depositor has in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(ii) No stop order suspending 6.4 You shall have received the effectiveness opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Registration Statement has been issued and no proceedings for that purpose have been instituted orCompany, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of dated the Closing DateDate and substantially to the effect set forth in Exhibit A, contains any untrue statement and the opinion of a material fact or omits [Name of Counsel to state any material fact required to be stated therein or necessary to make the statements therein not misleadingMaster Servicer], or that the Prospectus, as of dated the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished Date and substantially to the Underwriter a lettereffect set forth in Exhibit B.
6.5 You shall have received from [Name of Counsel to Underwriter], counsel for the Underwriter, an opinion dated as of the Closing Date, Date in form and substance satisfactory to the Underwriter.
6.6 The Underwriter shall have received from [Name of Company's Accountant], certified public accountants, a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they have performed certain specified procedures procedures, all of which have been agreed to by the Underwriter, as a result of which they have determined that such certain information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial captions "Description of the Mortgage Loans” Pool", "Pooling and elsewhere therein Servicing Agreement", "Description of the Certificates" and "Certain Yield and Prepayment Considerations" agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, Company excluding any questions of legal interpretation.
(d) 6.7 The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “"[AAA” ]" by [Standard & Poor’s's] and [Fitch Ratings].
6.8 You shall have received the opinion of [Name of Trustee's Counsel], a division of The dated the Closing Date, substantially to the effect set forth in Exhibit C.
6.9 You shall have received from ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇▇▇▇▇ Investors Service& ▇▇▇▇▇▇▇▇▇ LLP, Inc. (“Moody’s”)counsel to the Company, reliance letters with respect to any opinions delivered to [Standard & Poor's] and [Fitch Ratings]. The Class M-1 Certificates shall have been rated “AA+” by S&PCompany will furnish you with conformed copies of the above opinions, “AA+” by Fitchcertificates, “AA (high)” by DBRS letters and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.documents as you reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Long Beach Securities Corp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor District contained herein herein, as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the City and the District made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor District of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) At the Closing Date, the Formation Documents and the District Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Bond Counsel, shall be necessary and appropriate;
(b) Between the date hereof and the Closing Date, the market price or marketability of the Bonds at the initial offering prices set forth in the Official Statement shall not have been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department or the Internal Revenue Service of the United States of America, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon the interest that would be received by the holders of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
(2) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(3) the introduction, proposal or enactment of any amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the District, its property, income, securities (or interest thereon), the validity or enforceability of the Special Tax or the ability of the City or the District to construct or finance, and acquire the improvements as contemplated by the Formation Documents, the District Documents or the Official Statement;
(4) any event occurring, or information becoming known, which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or results in the Official Statement containing any untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(5) any national securities exchange, the Comptroller of the Currency, or any other governmental authority, shall impose as to the Bonds or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(6) the declaration of a general banking moratorium by federal, New York or California authorities;
(7) there shall have occurred any material outbreak or escalation of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it impracticable, in the judgment of the Underwriter, following consultation with the City, to sell the Bonds;
(8) any proceeding shall have been commenced or be threatened in writing by the Securities and Exchange Commission against the City; or
(9) the occurrence of an event described in Section 2(i) hereof.
(c) On the Closing Date, the Underwriter shall have received counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) The Formation Documents, together with a certificate dated as of the Closing Date of the City Clerk to the effect that each such document is a true, correct and complete copy of the one duly adopted by the City Council or by the City Council acting as the legislative body of the District; by the District;
(2) Copies of the District Documents and the Official Statement, duly executed
(3) An unqualified approving opinion for the Bonds, dated the Closing Date and addressed to the District, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Bond Counsel for the District, in the form attached to the Preliminary Official Statement as [Appendix B], and a reliance letter from such firm, dated the Closing Date and addressed to the Underwriter, to the effect that such approving opinion addressed to the District may be relied upon by the Underwriter to the same extent as if such opinion was addressed to them;
(4) A supplemental opinion, dated the Closing Date and addressed to the Underwriter, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Bond Counsel for the District, to the effect that (i) this Bond Purchase Agreement and the Continuing Disclosure Agreement have been duly authorized, executed and delivered by the District, and, assuming such agreements constitute valid and binding obligations of the other parties thereto, constitute the legally valid and binding agreements of the District enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and is subject to general principles of equity; (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended; and (iii) the statements contained in the Official Statement under the captions [“INTRODUCTION,’ “THE SERIES 2016 BONDS,” “SECURITY FOR THE SERIES 2016 BONDS,” “CONCLUDING INFORMATION— Tax Exemption” and Appendices B and C] insofar as such statements expressly summarize certain provisions of the Bonds, the Indenture and the opinion of such firm concerning the exclusion from gross income for federal income tax purposes and exemption from State of California personal income taxes of interest on the Bonds, are accurate in all material respects;
(5) An opinion, dated the Closing Date and addressed to the Underwriter, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished ▇▇▇▇▇, LLP, Disclosure Counsel, to the Underwriter opinionseffect, without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Official Statement, but on the basis of their participation in conferences with representatives of the City, representatives of the Underwriter, and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Official Statement as of its date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (except that no opinion or belief need be expressed as to any CUSIP numbers, financial, accounting, statistical, economic, engineering or demographic data or forecasts, numbers, charts, tables, graphs, estimates, projections, assumptions or expressions of opinion, any information about feasibility, valuation, appraisals, absorption, real estate or environmental matters, any information about litigation, book entry, DTC or [Appendix G] contained in the Official Statement);
(6) An opinion, dated the Closing Date, substantially Date and addressed to the effect set forth Underwriter, of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, a Professional Corporation, counsel for the Underwriter, in Exhibit A.form and substance satisfactory to the Underwriter;
(b7) The Depositor shall have furnished to the Underwriter a A certificate of the Depositor, signed by the President, Senior Vice President or any Vice PresidentDistrict, dated the Closing DateDate and signed by an authorized representative of the District, to ratifying the effect that use and distribution by the signer Underwriter of such certificate has carefully examined the Registration Preliminary Official Statement and the Prospectus Official Statement in connection with the offering and that:
sale of the Bonds and certifying that (i) The the representations and warranties of the Depositor District contained in this Agreement Section 2 hereof are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date; (ii) to the best of the District’s knowledge, no event has occurred since the date of the Official Statement affecting the matters contained therein which should be disclosed in the Official Statement for the purposes for which it is to be used in order to make the statements and information contained in the Depositor Official Statement not misleading in any material respect; and (iii) the District has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Formation Documents, the District Documents and the Official Statement at or prior to the Closing Date;
(ii) No stop order suspending 8) An opinion, dated the effectiveness Closing Date and addressed to the Underwriter, of the Registration Statement has been issued and City Attorney, to the effect that (i) except as disclosed in the Official Statement, no proceedings for that purpose have been instituted action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body is pending or, to the best of his or her knowledge, threatenedthreatened which would materially adversely affect the ability of the District to perform its obligations under the Formation Documents, the District Documents or the Bonds, or seeking to restrain or to enjoin the development of property within the District, the issuance, sale, delivery or exclusion from gross income for federal income tax purposes or State of California personal income taxes of interest, on the Bonds, or the application of the proceeds thereof in accordance with the Indenture, or the collection or application of the Special Tax, or in any way contesting or affecting the validity or enforceability of the Formation Documents, the District Documents or the Bonds or the accuracy of the Official Statement, or any action of the City or the District contemplated by any of said documents; and
(ii) the City is duly organized and validly existing as a chartered city under the Constitution and laws of the State of California and the District is duly organized and validly existing as a community facilities district under the laws of the State of California, with full legal right, power and authority to issue the Bonds and to perform all of its obligations under the Formation Documents and the District Documents; (iii) Nothing the District has come obtained all approvals, consents, authorizations, elections and orders of or filings or registrations with any State governmental authority, board, agency or commission having jurisdiction which constitute a condition precedent to his attention the levy of the Special Tax, the issuance of the Bonds or the performance by the District of its obligations thereunder or under the Indenture, except that would lead him no opinion need be expressed regarding compliance with blue sky or other securities laws or regulations; (iv) the City Council has duly and validly adopted or approved (as the case may be) the Formation Documents at meetings of the City Council which were called, held and conducted pursuant to believe that law and with all public notice required by law and at which a quorum was present and acting throughout, and the Registration Formation Documents are now in full force and effect; (v) the District has duly authorized, executed and delivered the District Documents and the Bonds and has duly authorized the preparation and delivery of the Official Statement, and the District Documents and the Bonds constitute legal, valid and binding agreements of the District, enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights in general and to the application of equitable principles if equitable remedies are sought; and (vi) information regarding the District and the City contained in the Official Statement as of its date and as of the Closing Date, contains Date does not contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(c9) Deloitte A certificate dated the Closing Date of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Touche LLP will have furnished Associates, Inc. (the “Special Tax Consultant”) to the Underwriter a lettereffect that (i) the Special Tax, dated if collected in the maximum amounts permitted pursuant to the Rate and Method of Apportionment, will generate in each Fiscal Year at least 110% of the debt service payable with respect to the Bonds in the calendar year that begins in such Fiscal Year, plus Assumed Administrative Expenses, based on such assumptions and qualifications as shall be acceptable to the Underwriter; (ii) all information supplied by the Special Tax Consultant, is true and correct as of the date of the Official Statement and as of the Closing Date, in form based on such assumptions as may have been supplied by it, and substance satisfactory to (iii) the Underwriter, to statements concerning the effect that they have performed certain specified procedures as a result Rate and Method of which they have determined that such information as the Underwriter may reasonably request of an accounting, Apportionment and all statistical and financial or statistical nature data set forth in the Definitive Free Writing Prospectus tables and discussion in the Prospectus Supplement Official Statement which was derived from information supplied by the Special Tax Consultant for use in the Official Statement under the caption captions [“The Initial Mortgage LoansSECURITY FOR THE SERIES 2016 BONDS,” “THE DISTRICT” and elsewhere APPENDIX A—“RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX,”] are true, correct and complete in all material respects and do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein agrees with or necessary to make the accounting records statements therein, in light of the Depositor andcircumstances under which they were made, where applicable, not misleading and no events or occurrences have been ascertained by the Mortgage Loan files Special Tax Consultant or have come to its attention that would substantially change such information set forth in the Official Statement;
(10) A certificate of the DepositorDistrict dated the Closing Date, excluding any questions in a form acceptable to Bond Counsel, that the Bonds are not arbitrage bonds within the meaning of legal interpretation.Section 148 of the Internal Revenue Code of 1986, as amended;
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”11), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase accept delivery of and pay for the Certificates on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations representations, warranties and warranties agreements on the part of the Depositor County contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the County, the Corporation and the Trustee made in any Officers’ certificates or other documents furnished pursuant to the provisions hereofhereof or the Certificate Documents, and to the performance by the Depositor County, the Corporation and the Trustee of its their respective obligations to be performed hereunder and under the Certificate Documents at or prior to the Closing Date, and to the following additional conditions:
(a) ▇▇At the Closing Date, the Certificates, the Certificate Documents and the Official Statement shall have been duly authorized, executed and delivered by the respective parties thereto, in substantially the forms heretofore submitted to the Underwriter with only such changes as shall have been agreed to by the Underwriter, and said documents shall not have been amended, modified or supplemented, except as may have been agreed to by the Underwriter, and there shall have been taken in connection therewith, with the execution and delivery of the Certificates and with the transactions contemplated thereby and by this Purchase Agreement, all such actions as ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP , A Professional Law Corporation, Special Counsel, shall have furnished deem to the Underwriter opinions, dated the Closing Date, substantially to the effect set forth in Exhibit A.be necessary and appropriate;
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor County contained in this Purchase Agreement are true shall be true, correct and correct complete in all material respects on the date hereof and as of on the Closing Date with the same effect Date, as if made again on the Closing Date, and the Depositor has complied Official Statement (as the same may be supplemented or amended with the written approval of the Underwriter) shall be true, correct and complete in all the agreements material respects and satisfied all the conditions on its part such information shall not contain any untrue statement of fact or omit to state any fact required to be performed stated therein or satisfied at or prior necessary to make the statements therein relating to the County, in light of the circumstances under which such statements were made, not misleading;
(c) Between the date hereof and the Closing Date;, neither the market price nor marketability, at the initial offering prices set forth in the Official Statement, of the Certificates shall have been materially adversely affected, in the judgment of the Underwriter, by reason of any of the following:
(1) legislation enacted or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court established under Article III of the Constitution of the United States or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made:
(i) by or on behalf of the Treasury Department of the United States or the Internal Revenue Service with the purpose or effect, directly or indirectly (except as described in the Official Statement), of imposing federal income taxation upon such interest as would be received by the owners of the Certificates, or
(ii) No stop order suspending the effectiveness by or on behalf of the Registration Statement has been issued Securities and no proceedings for that purpose have been instituted orExchange Commission, or any other governmental entity having jurisdiction of the subject matter, to his knowledgethe effect that obligations of the general character of the Certificates, threatened; andor the Certificates, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Trust Agreement is not exempt from qualification under the Trust Indenture Act of 1939, as amended;
(iii2) Nothing has come the declaration of war or engagement in major military hostilities by the United States or the occurrence of any other national emergency or calamity relating to his attention that would lead him the effective operation of the government or of the financial community in the United States;
(3) the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange;
(4) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental entity, of any material restrictions not now in force with respect to believe the Certificates or obligations of the general character of the Certificates or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(5) an order, decree or injunction of any court of competent jurisdiction, or order, filing, regulation or official statement by the Securities and Exchange Commission, or any other governmental entity having jurisdiction of the subject matter, issued or made to the effect that the Registration issuance, offering or sale of obligations of the general character of the Certificates, or the execution, delivery, offering or sale of the Certificates, including any or all underlying obligations, as contemplated hereby or by the Official Statement, as is or would be in violation of the Closing Datefederal securities laws as then in effect;
(6) the occurrence of any adverse change of a material nature of the financial condition, results of operation or properties of the County;
(7) the withdrawal or downgrading of any rating or credit outlook of the Certificates or other obligations of the County by a national rating agency; or
(8) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material adverse respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading, .
(d) At or that the Prospectus, as of prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) the Official Statement and each Certificate Document, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to by the Underwriter;
(2) an unqualified approving opinion, dated the Closing Date and addressed to the County, of ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, Special Counsel, in substantially the form attached to the Official Statement as Appendix , and a letter of such counsel, dated the Closing Date and addressed to the Underwriter, to the effect that such opinion may be relied upon by the Underwriter to the same extent as of such opinion were addressed to it;
(3) the supplemental opinion, dated the Closing Date and addressed to the Underwriter, of Special Counsel, substantially to the effect that (i) this Purchase Agreement and the Certificate Documents to which the County is a party have been duly authorized, executed and delivered by the County and are valid and binding agreements of the County enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium and other laws affecting the enforcement of creditors’ rights, by the application of equitable principles if equitable remedies are sought, by the exercise of judicial discretion in appropriate cases and by the limitations on legal remedies against public agencies in the State of California (ii) the Certificates are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Trust Agreement is exempt from qualification under the Trust Indenture Act of 1939, as amended, (iii) the statements contained in the Official Statement under the captions “INTRODUCTION,” “THE CERTIFICATES,” “SECURITY AND SOURCES OF PAYMENT FOR THE CERTIFICATES” and “TAX MATTERS”, insofar as such statements purport to summarize certain provisions of the Certificates, the Certificate Documents and Special Counsel’s opinion concerning certain federal tax matters relating to the Certificates, are accurate in all material respects, and (iv) the Certificate Documents to which the County is a party have been duly authorized, executed and delivered by the County, and, assuming due authorization, execution and delivery by the other parties thereto, constitute legal, valid and binding agreements of the County enforceable against the County in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other laws affecting the enforcement of creditors’ rights generally and by the application of equitable principles if sought and by the limitations on legal remedies imposed on actions against cities in the State of California;;
(4) a letter of ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, as disclosure counsel to the County (“Disclosure Counsel”), addressed to the Underwriter and the County, to the effect that without passing upon or assuming any responsibility for the accuracy, completeness or fairness of the statements contained in the Official Statement and making no representation that they have independently verified the accuracy, completeness or fairness of any such statements, based upon the information made available to them in the course of their participation in the preparation of the Official Statement, nothing has come to such counsel's attention which would lead them to believe that the Official Statement, including the cover page (but excluding therefrom the appendices thereto, financial statements and statistical data, and information regarding The Depository Trust Company and its book entry system, as to which no opinion need be expressed) contains any an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c5) Deloitte & Touche LLP will have furnished to a certificate of the Underwriter a letter, Trustee dated as of the Closing Date, in form and substance satisfactory to signed by a duly authorized officer of the UnderwriterTrustee, to the effect that they have performed certain specified procedures as (i) the Trustee is a result national banking association organized and existing under and by virtue of which they have determined that such information as the laws of the United States of America, having the full power and being qualified to enter into and perform its duties under the Trust Agreement and the Assignment Agreement and to execute and deliver the Certificates to the Underwriter may reasonably request pursuant to the Trust Agreement, (ii) when delivered to and paid for by the Underwriter on the Closing Date, the Certificates will have been duly executed and delivered by the Trustee, (iii) the execution and delivery of an accountingthe Trust Agreement and the Assignment Agreement and compliance with the provisions on the Trustee’s part contained therein, financial will not conflict with or statistical nature set forth constitute a breach of or default under any law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Trustee is a party or is otherwise subject (except that no representation, warranty or agreement is made with respect to any federal or state securities or blue sky laws or regulations), nor will any such execution, delivery, adoption or compliance result in the Definitive Free Writing Prospectus creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets held by the Trustee pursuant to the lien created by the Trust Agreement under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as provided by the Trust Agreement, and (iv) there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental or public entity pending or, to the best knowledge of the Trustee, threatened against the Trustee, affecting the existence of the Trustee, or the titles of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Certificates, or in any way contesting or affecting the validity or enforceability of the Trust Agreement and the Prospectus Supplement Assignment Agreement or contesting the powers of the Trustee to enter into, adopt or perform its obligations under any of the foregoing to which it is a party, wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of the Trust Agreement or the Assignment Agreement or the ability of the Trustee to perform its obligations thereunder;
(6) a certificate of the County, dated the Closing Date, signed by an authorized officer thereof, to the effect that (i) the County Resolution (defined below) was duly adopted at a meeting of the Board of Supervisors of the County which was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout; (ii) the representations and warranties of the County contained in this Purchase Agreement and in the Certificate Documents to which it is a party are true and correct in all material respects as of the Closing Date as if made on the Closing Date, (iii) to the best of the County’s knowledge, no event affecting the County has occurred since the date of the Official Statement which either makes untrue or incorrect in any material respect as of the Closing Date the statements or information (except for statements and information regarding DTC) contained in the Official Statement or is not reflected in the Official Statement but should be reflected therein in order to make the statements and information (except for statements and information regarding DTC) therein not misleading in any material respect, (iv) no further consent is required for the inclusion of the audited financials of the County for fiscal year 2012-13 in the Official Statement, and (v) there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court or governmental or public entity pending or, to the best knowledge of the County, after investigation, threatened against the County which affects or seeks to prohibit, restrain or enjoin the execution or delivery of the Certificates or the Certificate Documents, or contesting the validity of the Certificates or any of the Certificate Documents to which the County is party or the powers of the County to enter into or perform its obligations under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with Certificate Documents to which it is a party or the accounting records existence or powers of the Depositor County, or which, if determined adversely to the County, would materially impair the County’s ability to meet its obligations under the Lease Agreement or materially and adversely affect the County’s financial condition;
(7) a certificate of the Corporation, dated the Closing Date, signed by an authorized officer thereof, to the effect that (i) the Corporation is a nonprofit public benefit corporation duly organized and validly existing under the laws of the State of California, (ii) the Corporation has all necessary power and has taken all official actions necessary to execute, deliver and perform its duties under each of the Certificate Documents to which it is a party, and each of the Certificate Documents to which the Corporation is a party has been duly authorized, executed and delivered by the Corporation and, where applicableassuming the due authorization, execution and delivery by the Mortgage Loan files other respective parties thereto, will constitute legally valid and binding obligations of the DepositorCorporation enforceable against the Corporation in accordance with their respective terms, excluding except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or limiting creditors’ rights generally or principles of equity involving judicial discretion, (iii) the Corporation is not in material breach of, or default under, any questions applicable constitutional provision, law or administrative rule or regulation of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division the State of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.California or the United States of America material to the conduct of its functions or any applicable judg
Appears in 1 contract
Sources: Certificate Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any amendment or supplement thereto, will be filed in the manner and within the time period required by Rule 424(b); and 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 threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, to the effect that:
(i) each of the Company and its subsidiaries, including the Partnership, has been duly incorporated or organized and is validly existing as a corporation or other organization in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus, as amended or supplemented, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification and is subject to no material liability or disability by reason of the failure to be so qualified in any jurisdiction;
(ii) all the outstanding shares of capital stock or partnership interests of each subsidiary of the Company have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth on Exhibit A or in the Prospectus, as amended or supplemented, all outstanding shares of capital stock or partnership interests of such subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company’s authorized equity capitalization is as set forth in the Prospectus; the capital stock of the Company conforms in all material respects to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable, and the shares of Series 4 preferred stock have been duly and validly authorized and, when issued, will be duly and validly issued, fully paid and nonassessable; the Securities have been duly and validly authorized and, when issued and delivered to and paid for by the Underwriter pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable; the Securities are duly listed, and admitted and authorized for trading, on the New York Stock Exchange; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities arising by operation of law or the Company’s articles of incorporation or By-laws, or, to the knowledge of such counsel, under any agreement by which the Company is bound; and, except as set forth in the Prospectus, as amended or supplemented, or such opinion, to the knowledge of such counsel, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document relating to the Company or its subsidiaries of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus under the headings “Capital Stock”, “Description of Common Stock”, “Description of Preferred Stock”, “Description of Depositary Shares”, insofar as they purport to constitute a summary of the terms of the Securities, and the statements included or incorporated by reference in the Prospectus under the heading “Plan of Distribution” and in the Prospectus Supplement under the headings “Certain Federal Income Tax Considerations” and “Underwriting” (other than the information furnished in writing to the Company by or on behalf of the Underwriter), insofar as such statements summarize legal matters, agreements to which the Company is a party, documents or proceedings discussed therein, are accurate and fair summaries of such terms, legal matters, agreements, documents or proceedings;
(v) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any amendments or supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion), each as amended or supplemented, comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and although counsel assumes no responsibility for the accuracy, completeness or fairness of statements made therein except to the extent set forth in paragraph (iv) above, such counsel has no reason to believe that on the Effective Date or the date the Registration Statement was last deemed amended the Registration Statement contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date or on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act;
(viii) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required to be obtained by the Company in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriter in the manner contemplated in this Agreement and in the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(ix) the execution and delivery by the Company of this Agreement, its compliance with all of the provisions hereof and the consummation by the Company of any of the transactions herein contemplated, and, to the knowledge of such counsel, the sale of the Securities being sold by Company and the consummation by the parties other than the Company of any of the transactions herein contemplated, will not conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (i) the charter or by-laws of the Company or its subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument known to such counsel and to which the Company or any of its subsidiaries (including the Partnership) is a party or bound or to which its or their property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree known to such counsel to be applicable to the Company or its subsidiaries (including the Partnership) of any court, regulatory body, administrative agency, governmental body or arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties other than, in the case of clauses (ii) and (iii), such breaches or violation which, if determined adversely to the Company, would not reasonably be expected to have a material adverse effect on the current or future consolidated financial position, shareholders’ equity or results of operations of the Company and its subsidiaries taken as a whole or on the consummation of the transactions contemplated herein;
(x) to such counsel’s knowledge no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(xi) The Company has qualified to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Code for each taxable year since its inception through the most recently completed fiscal year, and based on assumptions set forth in the Prospectus and certain representations of the Company, including but not limited to those set forth in an Officer’s Certificate, the Company’s present and contemplated organization, ownership, method of operation, assets and income are such that the Company is in a position under present law to so qualify for the current fiscal year and in the future. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Florida, the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any amendments or supplements thereto at the Closing Date.
(c) The Underwriter shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have furnished to LLP, counsel for the Underwriter Underwriter, such opinion or opinions, dated the Closing Date, substantially Date and addressed to the effect set forth in Exhibit A.Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus (together with any amendment or supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(bd) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice Chairman of the Board or the President and the principal financial or any Vice Presidentaccounting officer of the Company or two other authorized signatories, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, the Prospectus, any amendments or supplements to the Prospectus and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included or incorporated by reference in the Prospectus (exclusive of any amendment or supplement thereto), there has come been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any amendment or supplement thereto).
(e) The Company shall have requested and caused KPMG LLP to his attention that would lead him have furnished to believe that the Registration StatementUnderwriter, as of at the Execution Time and at the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingletters, or that the Prospectus, dated respectively as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated Execution Time and as of the Closing Date, in form and substance satisfactory to the Underwriter, to confirming that they are independent accountants within the effect meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of the unaudited interim financial information of the Company for the six-month period ended June 30, 2004, and as at June 30, 2004 in accordance with Statement on Auditing Standards No. 100, and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules and, if applicable, pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the six-month period ended June 30, 2004, and as at June 30, 2004, incorporated by reference in the Registration Statement and the Prospectus; carrying out certain specified procedures as a result (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of which they have determined that such information as significance with respect to the Underwriter may reasonably request of an accounting, financial or statistical nature comments set forth in such letter; a reading of the Definitive Free Writing Prospectus minutes of the meetings of the stockholders, directors and the executive, audit and investment committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2003, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus Supplement do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in quarterly reports on Form 10-Q under the caption “The Initial Mortgage Loans” Exchange Act; and elsewhere therein agrees said unaudited financial statements are not in conformity with the generally accepted accounting records principles applied on a basis substantially consistent with that of the Depositor and, where applicable, audited financial statements included or incorporated by reference in the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Offered Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof 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 Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP The Underwriter shall have furnished received from PricewaterhouseCoopers LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter opinionsand counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Date, substantially updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the effect set forth in Exhibit A.Underwriter and counsel for the Underwriter.
(b) The Depositor 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 Offered Certificates shall have furnished been duly taken and made. At and prior to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to no stop order suspending the effect that the signer effectiveness of such certificate has carefully examined the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the Prospectus knowledge of the Company or the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and that:
delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or the Servicer which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Offered Certificates; (ii) any downgrading in the rating of the Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of the Servicer (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, North Carolina or New York 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 Underwriter, 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 Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of an executive officer of the Company in which such officer shall state that, to the best of such officer's knowledge after reasonable inspection, (i) the representations and warranties of the Depositor Company contained in this Agreement the Basic Documents are true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, Date and (ii) the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(iie) No stop order suspending The Underwriter shall have received an opinion of counsel for the effectiveness Company, which may be an opinion of in-house counsel to the Registration Statement has been issued Company, dated the Closing Date, in form and no proceedings substance satisfactory to the Underwriter and counsel for that purpose have been instituted or, to his knowledge, threatened; andthe Underwriter.
(iiif) Nothing has come to his attention that would lead him to believe that the Registration StatementThe Underwriter shall have received a certificate of an executive officer of BANA, dated as of the Closing Date, to the effect that, to th▇ ▇▇st of such officer's knowledge, (i) the representations and warranties contained in the Mortgage Loan Purchase Agreement are true and correct with the same force and effect as though made on and as of the Closing Date and (ii) such officer has reviewed the Final Prospectus as amended or supplemented to the Closing Date and nothing has come to such officer's attention that would lead such officer to believe that the Final Prospectus as amended or supplemented, insofar as it relates to BANA or the Mortgage Loans originated or acquired by BANA, contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading.
(g) The Underwriter shall have received an opinion of counsel for BANA, or which may be an opinion of in-house counsel to BANA, dated the Closing Date, in form and substance satisfact▇▇▇ to the Underwriter and counsel for the Underwriter.
(h) The Underwriter shall have received an opinion of Cadwalader, Wickersham & Taft LLP, special counsel to the Company, wh▇▇▇ ▇▇▇▇▇▇▇ ▇▇y r▇▇▇ on, and assume the accuracy of, the opinions described in paragraphs (e) and (g) above, dated the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(i) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(j) The Underwriter shall have received from Cadwalader, Wickersham & Taft LLP, special counsel for the Underwriter, a letter ▇▇ted ▇▇▇ Closing Date with respect to the Final Prospectus, substantially to the effect that nothing has come to such counsel's attention in the course of its review of the Final Prospectus which causes it to believe that the Final Prospectus, as of the date of the Prospectus Supplement or the Closing Date, contains contained any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(ck) Deloitte & Touche LLP will The Underwriter shall have furnished received an opinion of reasonably acceptable counsel to the Underwriter a letterTrustee, dated as of the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(l) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(m) At the Closing Date, the Certificates and the Pooling Agreement will conform in all material respects to the 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, in the opinion of counsel to the Underwriter, 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 effect authorization, form and validity of this Agreement, the Pooling Agreement, the Mortgage Loan Purchase Agreement, the Certificates, 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 have performed certain specified procedures as a result may reasonably request to enable them to pass upon such matters. The Company will provide or cause to be provided to the Underwriter such conformed copies of which they have determined that such information opinions, certificates, letters and documents as the Underwriter may reasonably request of an accountingrequest. All opinions, financial letters, evidence and certificates mentioned above or statistical nature set forth elsewhere in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees this Agreement shall be deemed to be in compliance with the accounting records of provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding Underwriter. If any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates condition specified in this Section 6 shall not have been rated “AAA” fulfilled when and as required to be fulfilled, this Agreement may be terminated by Standard & Poor’sthe Underwriter by notice to the Company at any time at or prior to the Closing Date, a division and such termination shall be without liability of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.any party to any other party except as provided in Section 7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Mortgage 2006-B Trust)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter's obligation to purchase the Certificates shall be subject to the accuracy in all respects following conditions:
6.1 No stop order suspending the effectiveness of the representations Registration Statement shall be in effect, and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Dateno proceedings for that purpose shall be pending or, to the accuracy knowledge of the statements Company, threatened by the Commission; and the Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Since __________, 200_ there shall have been no material adverse change (not in the ordinary course of business) in the condition of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:Company.
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP 6.3 The Company shall have furnished delivered to the Underwriter opinionsyou a certificate, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, a Senior Vice President or any a Vice President, dated President of the Closing Date, Company to the effect that the signer of such certificate has carefully examined this Agreement, the Registration Statement Prospectus, the Pooling and the Prospectus Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(ia) The the representations and warranties of the Depositor Company in this Agreement and in the Pooling and Servicing Agreement are true and correct in all material respects on and as of respects; and
(b) the Closing Date with the same effect as if made on the Closing DateCompany has, and the Depositor has in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(ii) No stop order suspending 6.4 You shall have received the effectiveness opinions of Thacher Proffitt & Wood, special counsel for the Registration Statement has been issued Company, dated the C▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ sub▇▇▇▇tially to the effect set forth in Exhibit A and no proceedings Exhibit B.
6.5 You shall have received from counsel for that purpose have been instituted orthe Underwriter, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of an opinion dated the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, Date in form and substance satisfactory to the Underwriter.
6.6 The Underwriter shall have received from certified public accountants, a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they have performed certain specified procedures procedures, all of which have been agreed to by the Underwriter, as a result of which they have determined that such certain information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial captions "Description of the Mortgage Loans” Pool", "Pooling and elsewhere therein Servicing Agreement", "Description of the Certificates" and "Certain Yield and Prepayment Considerations" agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, Company excluding any questions of legal interpretation.
(d) 6.7 The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “"AAA” " by [each of] [Standard & Poor’s's Ratings Services] and [Fitch Ratings] and "Aaa" by [Moody's Investors Service, a division Inc.].
6.8 You shall ha▇▇ ▇▇▇▇ived the opinion of The [Trustee's Counsel], dated the Closing Date, substantially to the effect set forth in Exhibit C.
6.9 You shall have received from Thacher Proffitt & Wood, special counsel to the Company, and from in-▇▇▇▇▇ ▇▇▇▇▇▇-▇ ▇▇ th▇ ▇▇▇▇ Companiesmpany, Inc. (“S&P”), “AAA” by reliance letters with respect to any opinions delivered to [Standard & Poor's Ratings Services] and [Fitch Ratings] and [Moody's Investors Service, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by Inc.]. The Company will ▇▇▇▇▇’▇ Investors Service▇h you with conformed copies of the above opinions, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&Pcertificates, “AA+” by Fitch, “AA (high)” by DBRS letters and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.documents as you reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Homestar Mortgage Acceptance Corp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Notes and related Guarantees shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company and the Guarantors contained herein as of the date hereof Execution Time and the Closing DateDate pursuant to Section 3 hereof, to the accuracy of the statements of the Depositor Company and the Guarantors made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company and the Guarantors of its their respective obligations hereunder (including providing all required certificates and opinions described below in forms reasonably satisfactory to the Underwriter and its counsel) and to the following additional conditions:
(a) ▇▇▇The Prospectus and any supplement thereto has been filed in the manner and within the time period required by Rule 424(b), and any other material required to be filed by the Company (including, without limitation, the Final Term Sheet) pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Underwriter and complied with to the Underwriter’s reasonable satisfaction.
(b) The Underwriter shall not have been advised by the Company, or shall not have discovered and disclosed to the Company, that the Registration Statement, the most recent Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the reasonable opinion of the Underwriter or its counsel, is material, or omits to state any fact which, in the opinion of the Underwriter or its counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) The Company shall have requested and caused ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall , P.C., counsel for the Company, to have furnished to the Underwriter its opinions, dated the Closing Date, substantially and addressed to the effect set forth Underwriter, in substantially the form attached hereto as Exhibit A.
(bd) ▇▇▇▇ ▇▇▇▇▇, Esq., general counsel to the Company, shall have furnished to the Underwriter his opinion, dated the Closing Date, and addressed to the Underwriter, in substantially the form attached hereto as Exhibit B.
(e) The Depositor Company shall have requested and caused one or more special counsel for the Company and the Guarantors, reasonably acceptable to the Underwriter, to furnish to the Underwriter its or their opinion (containing customary assumptions, qualifications, limitations and exceptions acceptable to the Underwriter and its counsel), dated the Closing Date and addressed to the Underwriter, in substantially the form attached hereto as Exhibit C.
(f) The Underwriter shall have received from Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Notes and the Guarantees, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) Each of the Company, the Guarantors and the Trustee shall have entered into the Indenture and the Underwriter shall have received counterparts, conformed as executed, thereof.
(h) The Notes shall be eligible for clearance and settlement through DTC.
(i) The Company shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice PresidentCompany, dated the Closing Date, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company and the Guarantors shall have furnished to the Underwriter a certificate of each Guarantor, dated the Closing Date, signed by an officer of such Guarantor, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement Statement, the Prospectus, the Disclosure Package and the Prospectus any supplements or amendments thereto and this Agreement and that:
(i) The the representations and warranties of the Depositor Company and each of the Guarantors in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Depositor Company and each of the Guarantors has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s or such Guarantor’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has come to his attention that would lead him to believe that been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto); and
(iv) they have carefully examined the Registration Statement, the Prospectus and the Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the Closing Date, contains or (3) the Disclosure Package, as of the Execution Time, did not and do not contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein and did not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits and do not omit to state a material fact required to be stated therein or necessary to make the statements thereintherein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not misleadingbeen so set forth.
(c1) Deloitte The Company shall have requested and caused Ernst & Touche Young LLP will to have furnished to the Underwriter, at the Execution Time, a letter dated as of the Execution Time, in form and substance satisfactory to the Underwriter, confirming that they are an independent registered public accounting firm with respect to the Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the PCAOB and stating as of the Execution Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given or incorporated by reference in the Disclosure Package, as of a date not more than five days prior to the Execution Time), the conclusions and findings of such firm with respect to the financial information set forth or incorporated by reference in the Disclosure Package and other matters customarily covered by accountants’ “comfort letters” to the Underwriter; and
(2) At the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Underwriter a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, confirming that they are an independent registered public accounting firm with respect to the effect Company and its subsidiaries within the applicable rules and regulations adopted by the Commission and the PCAOB and stating as of the Closing Date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the Closing Date), the conclusions and findings of such firm with respect to the financial information set forth in the Prospectus and other matters customarily covered by accountants’ “comfort letters” to Underwriter.
(k) On the Closing Date, the Underwriter shall have received a certificate from the Company, signed by the Chief Financial Officer of the Company, stating that they the financial information set forth under the heading “Recent Developments” in the Prospectus Supplement, dated February 12, 2007, is true and correct and fairly presents such financial information in all material respects, as of its date and the Closing Date.
(l) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package and the Prospectus, there shall not have performed certain been (i) any change or decrease specified procedures in the letter or letters referred to in paragraph (j) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a result whole, whether or not arising from transactions in the ordinary course of which they business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Notes.
(m) Subsequent to the Execution Time, there shall not have determined been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or subsequent to the Execution Time, any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(n) Prior to the Closing Date, the Company and the Guarantors shall have furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request request. The documents required to be delivered by this Section 6 shall be delivered at the office of an accountingWeil, financial or statistical nature set forth in Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor andUnderwriter, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇-, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Jarden Corp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Depositor made in any Officers’ ' certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP [___________] shall have furnished to the Underwriter opinions, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP [___________] will have furnished to the Underwriter a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “"The Initial Mortgage Loans” " and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s 's Home Equity Mortgage Pass-Through Certificates Series 2006-4[___________], Class A-1, Class A-2 and Class A-3 [list classes] Certificates shall have been rated “"AAA” " by [Standard & Poor’s's, a division of the McGraw-Hill Companies, Inc. ("S&P"), "AAA" Fitch Ratings, Inc. ("▇▇▇▇▇") and "Aaa" by Moody's Investors Service, Inc. ("Moody's")]. [The Class M-1 ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates icates shall have been rated “"AA+” " by S&P, “"AA+” " by Fitch, “AA (high)” by DBRS Fitch and “"Aa1” " by Moody’s's. The Class M-2 Certificates shall have been rated “"AA” " by S&P, “AA+” "AA" by Fitch, “AA” by DBRS Fitch and “"Aa2” " by Moody’s's. The Class M-3 Certificates shall have been rated “"AA-” " by S&P, “"AA-” " by Fitch, “AA (low)” by DBRS Fitch and “"Aa3” " by Moody’s's. The Class M-4 Certificates shall have been rated “"A+” " by S&P, “"A+” " by Fitch, “A (high)” by DBRS Fitch and “"A1” " by Moody’s's. The Class M-5 Certificates shall have been rated “"A” " by S&P, “A+” "A" by Fitch, “A” by DBRS Fitch and “"A2” " by Moody’s's. The Class M-6 Certificates shall have been rated “"A-” " by S&P, “A” "A-" by Fitch, “A” by DBRS Fitch and “"A3” " by Moody’s's. The Class M-7 Certificates shall have been rated “"BBB+” " by S&P, “A-” "BBB+" by Fitch, “A (low)” by DBRS Fitch and “"Baa1” " by Moody’s's. The Class M-8 Certificates shall have been rated “"BBB” " by S&P, “BBB+” "BBB" by Fitch, “BBB (high)” by DBRS Fitch and “Baa2” "Baa" by Moody’s's. The Class M-9 M-9F Certificates and the Class M-9A Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” "BBB-" by S&P, “"BBB-“ " by Fitch, “BBB (low)” by DBRS Fitch and “Ba1” "Baa3" by Moody’s's. The Class A-R Certificates and Class A-RL Certificates shall have been rated “"AAA” " by S&P.]
Appears in 1 contract
Sources: Underwriting Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Offered Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof 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 Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) The Underwriter shall have received from [________________] a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter and counsel to 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 Offered Certificates shall have been duly taken and made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the knowledge of the Company or the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or the Servicer which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Offered Certificates; (ii) any downgrading in the rating of the Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of the Servicer (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, North Carolina or New York 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 Underwriter, 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 Offered Certificates.
(d) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(e) The Underwriter shall have received a favorable opinion of [Cadwalader, Wickersham & Taft LLP] [Hunton & Williams LLP], special t▇▇ ▇ou▇▇▇▇ ▇▇▇ ▇he ▇▇▇▇any, ad▇▇▇▇▇▇d t▇ ▇▇▇ ▇▇derwriter and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriter and counsel to the Underwriter.
(f) The Underwriter shall have received a favorable opinion of [Cadwalader, Wickersham & Taft LLP] [Hunton & Williams LLP], special ▇▇▇▇▇el ▇▇▇ ▇▇▇ ▇omp▇▇▇, addres▇▇▇ ▇▇ th▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP riter and dated the Closing Date and reasonably satisfactory in form and substance to the Underwriter, with respect to the validity of the Certificates, ERISA matters 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 copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter opinionsor accompanied by reliance letters addressed to the Underwriter.
(h) The Underwriter shall have received an opinion of counsel to the Trustee, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished form and substance satisfactory to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:its counsel.
(i) 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 Depositor 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 in all material respects on and as of correct, (iii) the Closing Date with the same effect as if made on the Closing Date, and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
, (iiiv) No no stop order suspending the effectiveness of the Registration Statement has been issued and issued, (v) no proceedings for that purpose have been instituted oror are contemplated by the Commission, to his knowledgeand (vi) there has been no amendment or other document filed affecting the Certificate of Incorporation or bylaws of the Company, threatened; andand no such amendment has been authorized.
(iiij) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of At the Closing Date, the Certificates and the Pooling Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(k) 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 any an untrue statement of a material fact or omits to state any a fact which, in the opinion of counsel to the Underwriter, is material fact and is required to be stated therein or is necessary to make the statements therein not misleading.
(l) The Underwriter shall have received from [Cadwalader, Wickersham & Taft LLP] [Hunton & Williams LLP], spe▇▇▇▇ ▇▇▇▇▇el ▇▇▇ ▇▇▇ ▇nderwrite▇, a ▇▇▇▇▇▇ da▇▇▇ ▇▇▇ Closing Date with respect to the Final Prospectus, in form and substance satisfactory to the Underwriter.
(m) All corporate proceedings and other legal matters relating to the authorization, form and validity of this Agreement, the Pooling Agreement, the Mortgage Loan Purchase Agreement, the Certificates, 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.
(n) The Underwriter shall have received a certificate (upon which [Cadwalader, Wickersham & Taft LLP] [Hunton & Williams LLP] shall be entitle▇ ▇▇ ▇▇▇▇ in ▇▇▇▇ering i▇▇ ▇▇▇nio▇▇ ▇▇▇ ▇etters under the Basic Documents) dated the Closing Date of an officer of the Trustee in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) the Trustee is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement, (ii) the information in the Prospectus Supplement related to the Trustee (the "Trustee Disclosure") includes (a) the Trustee's correct name and form of organization and (b) a discussion of the Trustee's experience serving as trustee for asset-backed securities transactions involving mortgage loans; and (iii) the Trustee Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Prospectus, as of the Closing Date, Trustee Disclosure contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading.
(o) The Underwriter shall have received a certificate (upon which [Cadwalader, Wickersham & Taft LLP] [Hunton & Williams LLP] shall be entitle▇ ▇▇ ▇▇▇▇ in ▇▇▇▇ering i▇▇ ▇▇▇nio▇▇ ▇▇▇ ▇etters under the Basic Documents) dated the Closing Date of an officer of [_________________] (the "Originator") in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) except as disclosed, the Originator is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to the Originator (the "Originator Disclosure") includes the Originator's correct name, form of organization and length of time originating mortgage loans; (iii) the description of the Originator's origination program includes (a) experience in originating mortgage loans, (b) size and composition of the Originator's origination portfolio, and (c) Deloitte the Originator's credit-granting or underwriting criteria for the mortgage loans; (iv) except as set forth in the Originator Disclosure, no additional information regarding the Originator's origination program could have a material adverse affect in the performance of the pool assets or the Offered Certificates; and (v) the Originator Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Originator Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading.
(p) The Underwriter shall have received a certificate (upon which [Cadwalader, Wickersham & Touche LLP Taft LLP] [Hunton & Williams LLP] shall be entitle▇ ▇▇ ▇▇▇▇ in ▇▇▇▇ering i▇▇ ▇▇▇nio▇▇ ▇▇▇ ▇etters under the Basic Documents) dated the Closing Date of an officer of the Servicer in which such officer shall state that, to the best of such officer's knowledge after reasonable investigation: (i) except as disclosed in the Prospectus Supplement, the Servicer is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to the Servicer (the "Servicer Disclosure") includes (a) the Servicer's correct name and form of organization, (b) the correct length of time that the Servicer has been servicing mortgage loans; and (c) a discussion of the Servicer's experience in servicing mortgage loans; (iii) except as set forth in the Servicer Disclosure, (a) there are no other servicers responsible for calculating or making distributions to the holders of the Offered Certificates, performing work-outs or foreclosures, or any other material aspect of servicing the mortgage loans, (b) there have been no material changes to the Servicer's servicing policies and procedures during the last three years, (c) no additional information regarding the Servicer's financial condition could have a material affect on performance of the Mortgage Loans or the Offered Certificates, (d) no commingling of funds on deposit in collection accounts will be permitted by the Servicer, (e) no additional information with respect to any special or unique factors involved in servicing the mortgage loans could have furnished a material affect on performance of the Offered Certificates, and (f) no additional information with respect to the Servicer's process for handling delinquencies, losses, bankruptcies and recoveries could have a material affect on performance of the Offered Certificates; (iv) for each other servicer identified in the Prospectus Supplement as responsible for calculating or making distributions to the holders of the Offered Certificates, performing work-outs or foreclosures, or any other material aspect of servicing the mortgage loans, the certifications in clauses (ii) and (iii) above are made with respect to such servicer; and (v) the Servicer Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Servicer Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading. The Company will provide or cause to be provided to the Underwriter a lettersuch conformed copies of such opinions, dated as of the Closing Datecertificates, in form letters and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information documents as the Underwriter may reasonably request of an accountingrequest. All opinions, financial letters, evidence and certificates mentioned above or statistical nature set forth elsewhere in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees this Agreement shall be deemed to be in compliance with the accounting records of provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding Underwriter. If any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates condition specified in this Section 6 shall not have been rated “AAA” fulfilled when and as required to be fulfilled, this Agreement may be terminated by Standard & Poor’sthe Underwriter by notice to the Company at any time at or prior to the Closing Date, a division and such termination shall be without liability of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.any party to any other party except as provided in Section 7.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor Community Facilities District contained herein as of the date hereof and the Closing Dateherein, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the Community Facilities District made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor Community Facilities District of its their obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated At the Closing Date, substantially the Community Facilities District Resolutions and the Community Facilities District Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the effect set forth Underwriter, and there shall have been taken in Exhibit A.connection therewith, with the issuance of the Bonds, and with the transactions contemplated thereby, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated At the Closing Date, except as described in the Preliminary Official Statement, the Community Facilities District shall not be, in any respect material to the effect that transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the signer State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Community Facilities District is a party or is otherwise subject or bound, and the performance by the Community Facilities District of its obligations under the Bonds, the Community Facilities District Resolutions, the Indenture, the other Community Facilities District Documents, and any other instruments contemplated by any of such certificate has carefully examined documents, and compliance with the Registration Statement provisions of each thereof, or the performance of the conditions precedent to be performed hereunder, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Community Facilities District is a party or is otherwise subject or bound, in any manner which would materially and adversely affect the Prospectus and that:performance by the Community Facilities District of its obligations under the Indenture, the other Community Facilities District Documents, the Bonds or the performance of the conditions precedent to be performed by the Community Facilities District hereunder.
(ic) The representations and warranties information contained in the Official Statement is, as of the Depositor in this Agreement are Closing Date and as of the date of any supplement or amendment thereto pursuant hereto, true and correct in all material respects on and does not, as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Datedate of any supplement or amendment thereto, contains contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
(d) Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth on the cover page of the Official Statement, of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds, shall not have been materially adversely affected, in the reasonable judgment of the Underwriter (evidenced by a written notice to the Community Facilities District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
1. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration, or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department of the United States of America or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by any owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof; or
2. Legislation introduced in or enacted (or resolution passed) by the Congress or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission (the “SEC”), or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended (the “Securities Act”), or that the ProspectusIndenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or that the issuance, offering or sale of obligations of the Closing Dategeneral character of the Bonds, including any or all underlying arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws as amended and then in effect; or
3. A general suspension of trading on the New York Stock Exchange or other major exchange shall be in force, or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on any such exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction; or
4. The introduction, proposal or enactment of any amendment to the federal or State Constitution or any action by any federal or State court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Community Facilities District, its property, income, securities (or interest thereon), the validity or enforceability of Special Taxes, or the ability of the Community Facilities District to issue the Bonds as contemplated by the Indenture and the Official Statement; or
5. Any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Preliminary Official Statement or in the Official Statement, or has the effect that the Preliminary Official Statement or the Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.; or
6. Any national securities exchange, the Comptroller of the Currency, or any other governmental authority, shall impose as to the Bonds, or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, the Underwriter; or
7. There shall have occurred (1) an outbreak or escalation of hostilities or the declaration by the United States of a national emergency or war or (2) any other calamity or crisis in the financial markets of the United States or elsewhere or the escalation of such calamity or crisis, the effect of which on the financial markets of the United States is such as, in the reasonable judgment of the Underwriter, would materially adversely affect the market for or market price of the Bonds; or
8. Any event or circumstance shall exist that either makes untrue or incorrect in any material respect any statement or information in the Official Statement (other than any statement provided by the Underwriter) or is not reflected in the Official Statement but should be reflected therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and, in either such event, the Community Facilities District refuses to permit the Official Statement to be supplemented to supply such statement or information, or the effect of the Official Statement as so supplemented is to materially adversely affect the market price or marketability of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or
9. A general banking moratorium shall have been declared by federal or State authorities having jurisdiction and be in force; or
10. A material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred; or
11. Any new restriction on transactions in securities materially affecting the market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a charge to the net capital requirements of, underwriters shall have been established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order; or
12. A decision by a court of the United States shall be rendered, or a stop order, release, regulation or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made, to the effect that the issuance, offering or sale of the Bonds, including the underlying obligations as contemplated by this Purchase Agreement or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds, is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Securities Exchange Act of 1934, as amended and the Trust Indenture Act; or
13. Any proceeding shall have been commenced or be threatened in writing by the SEC against the City or the Community Facilities District; or
(ce) Deloitte & Touche LLP will At or prior to the Closing Date, the Underwriter shall have furnished received a counterpart original or certified copy of the following documents, in each case satisfactory in form and substance to the Underwriter and Bond Counsel:
1. The Official Statement, executed on behalf of the Community Facilities District by an authorized officer;
2. The Indenture, duly executed and delivered by the Community Facilities District and the Trustee;
3. The Resolutions and Formation Documents, together with a letter, certificate dated as of the Closing DateDate of the City Clerk to the effect that the Community Facilities District Resolutions are true, correct and complete copies of the ones duly adopted by the City Council;
4. The Continuing Disclosure Agreement executed and delivered by the Community Facilities District and Willdan Financial Services, as dissemination agent;
5. An unqualified approving opinion of Bond Counsel for the Bonds in the form attached to the Official Statement;
6. A supplemental opinion or opinions of Bond Counsel, dated the Closing Date and substance satisfactory addressed to the Community Facilities District and the Underwriter, to the effect that:
(i) The Community Facilities District is duly organized and validly existing as a community facilities district under and by virtue of the Constitution and laws of the State (including the Act);
(ii) The City Council of the City, acting as legislative body of the Community Facilities District, has the full legal right, power and authority to adopt the Resolutions and Formation Documents;
(iii) the statements contained in the Official Statement under the captions “INTRODUCTION – Sources of Payment for the Bonds,” “INTRODUCTION – Description of the Bonds,” “THE BONDS” (other than information relating to DTC and its book-entry only system and information in the section entitled “Debt Service Schedule”, as to which no opinion is expressed), “SOURCES OF PAYMENT FOR THE BONDS,” “TAX EXEMPTION,” and in Appendices B and E thereto, excluding any material that may be treated as included under such captions by reference to other documents, insofar as such statements expressly summarize certain provisions of the Indenture and Bond Counsel’s final opinion are accurate in all material respects;
(iv) this Purchase Agreement and the Continuing Disclosure Agreement have been duly executed and delivered by, and constitute valid and binding obligations of, the Community Facilities District, subject to bankruptcy, insolvency, reorganization, moratorium and other laws affecting enforcement of creditors’ rights in general and to the application of equitable principles if equitable remedies are sought;
(v) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; and
(vi) All approvals, consents, authorization, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the ability of the Community Facilities District, to perform its obligations under the Bonds or the Community Facilities District Documents, have been obtained or made, as the case may be, and are in full force and effect.
7. The letter of Disclosure Counsel, dated the Closing Date and addressed to the Community Facilities District and to the Underwriter, to the effect that, without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official Statement, but on the basis of their participation in conferences with representatives of the Community Facilities District, the Special Tax Consultant and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Preliminary Official Statement as of its date and the date of this Purchase Agreement and the Official Statement as of its date and as of the Closing Date contained or contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they have performed certain specified procedures were made, not misleading (except that no opinion or belief need be expressed as to any financial statements or other financial, statistical or engineering data or forecasts, numbers, charts, estimates, projections, assumptions, or expressions of opinion, any information about valuation, appraisals, absorption, archeological or environmental matters, or any information with respect to the City, or about DTC or the book-entry-only system);
8. A certificate dated the Closing Date and signed by an authorized representative of the Community Facilities District or an authorized designee, on behalf of the Community Facilities District substantially in the form attached hereto as Exhibit F;
9. An opinion of the City Attorney of the City, dated the date of Closing and addressed to the Underwriter and the City, to the effect that:
(i) The City is duly organized and validly existing as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus municipal corporation and the Prospectus Supplement charter city under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records by virtue of the Depositor and, where applicable, the Mortgage Loan files Constitution and laws of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor Community Facilities District contained herein herein, as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the Community Facilities District made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor Community Facilities District of its obligations to be performed hereunder at or prior to the Closing Date, and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated At the Closing Date, substantially the Community Facilities District Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the effect set forth Underwriter, and there shall have been taken in Exhibit A.connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate;
(b) The Depositor shall have furnished to information contained in the Underwriter a certificate of the DepositorOfficial Statement will, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect and as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued date of any supplement or amendment thereto pursuant to Section 3(i) hereof, be true, correct and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statementcomplete in all material respects and will not, as of the Closing DateDate or as of the date of any supplement or amendment thereto pursuant to Section 3(i) hereof, contains contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(c) Deloitte & Touche LLP will Between the date hereof and the Closing Date, the market price or marketability of the Bonds at the initial offering prices set forth in the Official Statement or the ability of the Underwriter to enforce contracts for the sale of the Bonds, shall not have furnished been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the Community Facilities District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds) by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration or a letterdecision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department or the Internal Revenue Service of the United States of America, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon the interest that would be received by the holders of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
(2) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission (the “SEC”), or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under, or from the other requirements of, the Securities Act of 1933, as amended, or that the Resolution is not exempt from qualification under, or from the other requirements of, the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(3) any amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Community Facilities District, its property, income, securities (or interest thereon), the validity or enforceability of the Special Tax or the ability of the Community Facilities District to construct or acquire the improvements as contemplated by the Community Facilities District Documents or the Official Statement or the right of any owner of the property within the Community Facilities District to develop such property in the manner described in the Official Statement;
(4) any event occurring, or information becoming known, which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or results in the Official Statement containing any untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; or
(5) the declaration of war or the escalation of, or engagement in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to the effective operation of the government of, or the financial community in, the United States; or
(6) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, or the general suspension of trading on any national securities exchange or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction; or
(7) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter; or
(8) the entry of an order by a court of competent jurisdiction which order, in the reasonable opinion of the Underwriter, materially and adversely affects proposed development of property within the Community Facilities District; or
(9) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred; or
(10) there shall have been any material adverse change in the affairs of the Community Facilities District or County that in the Underwriter’s reasonable judgment will materially adversely affect the market for the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or
(11) there shall be established any new restriction on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order; or
(12) a stop order, release, regulation, or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made to the effect that the issuance, offering, or sale of the Bonds, including all the underlying obligations as contemplated hereby or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Exchange Act, and the Trust Indenture Act of 1939, as amended; or
(13) the commencement of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body described in Section 3(k).
(d) On the Closing Date, the Underwriter shall have received counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) The Community Facilities District Documents, together with a certificate dated as of the Closing DateDate of the Clerk of the Board to the effect that each such document is a true, correct and complete copy of the one duly approved by the Board;
(2) The Official Statement, duly executed by the Community Facilities District;
(3) The opinion of Bond Counsel, dated the Closing Date and addressed to the Community Facilities District, in substantially the form attached to the Preliminary Official Statement as Appendix D, and substance satisfactory a reliance letter from such firm, dated the Closing Date and addressed to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as approving opinion addressed to the Community Facilities District may be relied upon by the Underwriter may reasonably request to the same extent as if such opinion were addressed to them;
(4) The supplemental opinion of an accountingBond Counsel, financial or statistical nature set forth dated the Closing Date and addressed to the Underwriter, to the effect that (i) this Bond Purchase Agreement, the Escrow Agreement, and the Community Facilities District Continuing Disclosure Certificate have been duly authorized, executed and delivered by the Community Facilities District, and, in the Definitive Free Writing Prospectus case of the Bond Purchase Agreement and Escrow Agreement, assuming such agreement constitutes a valid and binding obligation of the respective other parties thereto, constitute the legally valid and binding obligations of the Community Facilities District enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and is subject to general principles of equity and to the exercise of judicial discretion in appropriate cases; (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Prospectus Supplement Resolution is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended; and (iii) the statements contained in the Official Statement under the caption captions “The Initial Mortgage LoansTHE 2023 BONDS,” “SECURITY AND SOURCES OF PAYMENT FOR THE BONDS,” “LEGAL MATTERS – Tax Exemption,” and elsewhere therein agrees with the accounting records in Appendices B, C, D and F, insofar as such statements expressly summarize certain provisions of the Depositor and, where applicableBonds, the Mortgage Loan files Resolution, the Escrow Agreement, and the other agreements and the opinion of such firm concerning the Depositorexclusion from gross income for federal income tax purposes and exemption from State of California personal income taxes of interest on the Bonds, excluding any questions of legal interpretation.are accurate in all material respects;
(d5) An opinion of Bond Counsel dated the Closing Date and addressed to the Underwriter in form and substance acceptable to the Underwriter that the Prior Bonds have been defeased and are no longer outstanding;
(6) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division letter of The ▇▇▇▇▇▇-▇▇▇ ▇▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇▇ Investors Service& ▇▇▇▇▇, Inc. a Professional Corporation, as disclosure counsel (“Moody’sDisclosure Counsel”) dated the Closing Date and addressed to the Community Facilities District and to the Underwriter, to the effect that, without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official Statement, but on the basis of their participation in conferences with representatives of the Community Facilities District, the Special Tax Consultant and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Official Statement, as of its date contained, or as of the Closing Date contains, any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (except that no view need be expressed with respect to (i) the expressions of opinion, the assumptions, the projections, estimates and forecasts, the charts, the financial statements or other financial, numerical, economic, demographic or statistical data, assessed or appraised valuations, absorption schedules, or archeological or environmental matters contained in the Official Statement; (ii) any CUSIP numbers or information relating thereto; (iii) any information with respect to The Depository Trust Company and its book-entry system; (iv) any information contained in the Appendices to the Official Statement; (v) any information incorporated by reference into the Official Statement; and (vi) any information with respect to the Underwriter or underwriting matters with respect to the Bonds, including but not limited to information under the caption “UNDERWRITING”). The Class M-1 Certificates shall have ;
(7) A certificate, dated the Closing Date and signed by an authorized representative of the Community Facilities District, ratifying the use and distribution by the Underwriter of the Preliminary Official Statement and the Official Statement in connection with the offering and sale of the Bonds and certifying that (i) the representations and warranties of the Community Facilities District contained in Section 3 hereof are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date; (ii) to the best of his or her knowledge, no event has occurred since the date of the Official Statement affecting the matters contained therein which should be disclosed in the Official Statement for the purposes for which it is to be used in order to make the statements and information contained in the Official Statement not misleading in any material respect, and the Bonds and the Community Facilities District Documents conform as to form and tenor to the descriptions thereof contained in the Official Statement; and (iii) the Community Facilities District has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Community Facilities District Documents at or prior to the Closing Date;
(8) An opinion, dated the Closing Date and addressed to the Underwriter, of the office of County Counsel, to the effect that (i) the County was duly organized and is validly existing as a division of the State under the Constitution and laws of the State of California,
(ii) the Board adopted the resolutions and ordinances forming the Community Facilities District, confirming the Special Tax, approving the Community Facilities District Documents and authorizing the sale and issuance of the Bonds at meetings of the Board which were held pursuant to law, (iii) to its current actual knowledge, there are no actions, suits, proceedings, inquiries, or investigations, at law or in equity, before or by any California court, governmental agency, public board, or body, pending (notice of which has been rated “AA+” by S&Pserved on the County) or, “AA+” by Fitchthreatened in writing against the County or the Community Facilities District, “AA (high)” by DBRS for which the County or the Community Facilities District has been served, to restrain or enjoin the issuance of the Bonds, the collection or application of the Special Tax, or the payment of principal of and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&Pinterest on the Bonds, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.or in any way contesting the validity of the Bonds or the Community Facilities District Documents or this Bond Purchase Agreement;
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates shall be are subject to the accuracy in all respects of condition that the representations and warranties Registration Statement shall remain effective on the part of the Depositor contained herein as of the date hereof and the Closing Date, Date and no stop order with respect to the accuracy effectiveness of the statements Registration Statement shall have been issued under the Securities Act nor any proceedings initiated under Sections 8(d) or 8(e) of the Depositor made in any Officers’ certificates pursuant to the provisions hereofSecurities Act, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:.
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, and the Fund from that set forth in the Time of Sale Prospectus and Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Underwriter’s judgment, is material and adverse and that makes it, in the Underwriter’s judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus and Prospectus.
(b) The Underwriter shall have received on the Closing Date a certificate dated the Closing Date and signed by the chief executive officer and chief financial officer of the Company, (i) that such officers have carefully reviewed the Registration Statement, the Time of Sale Prospectus and the Prospectus and, to the best knowledge of such officers, the representations set forth in Sections 1(a)-(d) hereof are true and correct, (ii) to the effect set forth in Section 5(a) above, (iii) that no stop order with respect to the effectiveness of the Registration Statement has been issued under the Securities Act nor any proceedings have been initiated under Sections 8(d) or 8(e) of the Securities Act and (iv) that the representations and warranties of the Company contained in this Agreement are true, correct and complete as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date, an opinion of ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, dated the Closing Date in the form attached hereto as Exhibit B.
(d) The Underwriter shall have received on the Closing Date, an opinion and letter of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have furnished LLP, outside counsel to the Underwriter opinionsCompany, dated the Closing Date, substantially to Date in the effect set forth in form attached hereto as Exhibit A.C.
(be) The Depositor Underwriter shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made received on the Closing Date, an opinion and letter of O’Melveny & ▇▇▇▇▇ LLP, counsel for 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letterUnderwriter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter.
(f) The Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof, and the Closing Date in form and substance reasonably satisfactory to the effect that they have performed Underwriter, from Ernst & Young LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain specified procedures as a result of which they have determined that such financial information as the Underwriter may reasonably request of an accounting, financial contained in or statistical nature set forth incorporated by reference in the Definitive Free Writing Registration Statement, the Time of Sale Prospectus and the Prospectus Supplement under provided that the caption letter delivered on the Closing Date shall use a “The Initial Mortgage Loanscut-off date” and elsewhere therein agrees with not earlier than the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationdate hereof.
(dg) The Depositor’s Home Equity Mortgage PassLock-Through Certificates Series 2006-4up Agreements between the Underwriter and the parties set forth on Schedule IV relating to sales and certain other dispositions of shares of Class A Common Stock or certain other securities, Class A-1delivered to the Underwriter on or before the date hereof, Class A-2 shall be in full force and Class A-3 Certificates effect on the Closing Date.
(h) On or before the Closing Date, the Underwriter and counsel for the Underwriter shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties or the satisfaction of any of the conditions or agreements herein contained.
(i) The Shares shall have been rated “AAA” by Standard & Poor’sapproved for listing on the NYSE, a division subject to official notice of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.issuance.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor Community Facilities District contained herein as of the date hereof and the Closing Dateherein, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the Community Facilities District made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor Community Facilities District of its their obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated A. At the Closing Date, substantially the Community Facilities District Resolutions and the Community Facilities District Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the effect set forth in Exhibit A.
(b) The Depositor Underwriter, and there shall have furnished to been taken in connection therewith, with the Underwriter a certificate issuance of the DepositorBonds, signed by and with the Presidenttransactions contemplated thereby, Senior Vice President or any Vice Presidentall such actions as, dated in the opinion of Bond Counsel, shall be necessary and appropriate.
B. At the Closing Date, except as described in the Preliminary Official Statement, the City shall not be, in any respect material to the effect that transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the signer State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound, and the performance of the conditions precedent to be performed hereunder will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound, in any manner which would materially and adversely affect the performance of the conditions precedent to be performed by the City hereunder.
C. At the Closing Date, except as described in the Preliminary Official Statement, the Community Facilities District shall not be, in any respect material to the transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Community Facilities District is a party or is otherwise subject or bound, and the performance by the Community Facilities District of its obligations under the Bonds, the Community Facilities District Resolutions, the Indenture, and any other instruments contemplated by any of such certificate has carefully examined documents, and compliance with the Registration Statement and provisions of each thereof, or the Prospectus and that:
(i) The representations and warranties performance of the Depositor conditions precedent to be performed hereunder, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Community Facilities District is a party or is otherwise subject or bound, in this Agreement are any manner which would materially and adversely affect the performance by the Community Facilities District of its obligations under the Indenture, the Bonds or the performance of the conditions precedent to be performed by the Community Facilities District hereunder.
D. The information contained in the Official Statement is, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant hereto, true and correct in all material respects on and does not, as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Datedate of any supplement or amendment thereto, contains contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
E. Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth on the cover page of the Official Statement, of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds, shall not have been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the Community Facilities District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
1. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration, or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department of the United States of America or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by any owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof; or
2. Legislation introduced in or enacted (or resolution passed) by the Congress or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission (the “SEC”), or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended (the “Securities Act”), or that the ProspectusIndenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or that the issuance, offering or sale of obligations of the Closing Dategeneral character of the Bonds, including any or all underlying arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws as amended and then in effect; or
3. A general suspension of trading on the New York Stock Exchange or other major exchange shall be in force, or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on any such exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction; or
4. The introduction, proposal or enactment of any amendment to the federal or State Constitution or any action by any federal or State court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Community Facilities District, its property, income, securities (or interest thereon), the validity or enforceability of Special Taxes, or the ability of the Community Facilities District to issue the Bonds as contemplated by the Indenture and the Official Statement; or
5. Any event occurring, or information becoming known which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Preliminary Official Statement or in the Official Statement, or has the effect that the Preliminary Official Statement or the Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
6. Any national securities exchange, the Comptroller of the Currency, or any other governmental authority, shall impose as to the Bonds, or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, the Underwriter; or
7. There shall have occurred (1) an outbreak or escalation of hostilities or the declaration by the United States of a national emergency or war or (2) any other calamity or crisis in the financial markets of the United States or elsewhere or the escalation of such calamity or crisis; or
8. Except as disclosed in or contemplated by the Official Statement, any material adverse change in the affairs of the City or Community Facilities District shall have occurred; or
9. Any event or circumstance shall exist that either makes untrue or incorrect in any material respect any statement or information in the Official Statement (other than any statement provided by the Underwriter) or is not reflected in the Official Statement but should be reflected therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and, in either such event, the Community Facilities District refuses to permit the Official Statement to be supplemented to supply such statement or information, or the effect of the Official Statement as so supplemented is to materially adversely affect the market price or marketability of the Bonds or the ability of the Underwriters to enforce contracts for the sale of the Bonds; or
10. A general banking moratorium shall have been declared by federal or State authorities having jurisdiction and be in force; or
11. A material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred; or
12. Any new restriction on transactions in securities materially affecting the market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a charge to the net capital requirements of, underwriters shall have been established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order; or
13. A decision by a court of the United States shall be rendered, or a stop order, release, regulation or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made, to the effect that the issuance, offering or sale of the Bonds, including the underlying obligations as contemplated by this Purchase Agreement or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds, is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Securities Exchange Act of 1934, as amended and the Trust Indenture Act; or
14. Any proceeding shall have been commenced or be threatened in writing by the SEC against the City or the Community Facilities District; or
15. The commencement of any Action as described in items (i) through (iv) of Section 2(M) hereof.
(c) Deloitte & Touche LLP will have furnished F. At or prior to the Closing Date, the Underwriter shall have received a lettercounterpart original or certified copy of the following documents, in each case satisfactory in form and substance to the Underwriter:
1. The Official Statement, executed on behalf of the Community Facilities District by an authorized officer;
2. The Indenture, duly executed and delivered by the Community Facilities District and the Trustee;
3. The Community Facilities District Resolutions and the Community Facilities District Documents and the Formation Documents, together with a certificate dated as of the Closing DateDate of the City Clerk to the effect that the Community Facilities District Resolutions are true, correct and complete copies of the ones duly adopted by the City Council;
4. The Continuing Disclosure Certificate executed and delivered by the Community Facilities District;
5. An unqualified approving opinion of Bond Counsel for the Bonds, dated the Closing Date and addressed to the Community Facilities District, to the effect that the Bonds are the valid, legal and binding obligations of the Community Facilities District and that the interest thereon is excluded from gross income for federal income tax purposes and exempt from personal income taxes of the State, in substantially the form included as an appendix to the Official Statement, together with a letter of Bond Counsel, dated the Closing Date and substance satisfactory addressed to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as opinion addressed to the Community Facilities District may be relied upon by the Underwriter to the same extent as if such opinion was addressed to it;
6. A supplemental opinion or opinions of Bond Counsel, dated the Closing Date and addressed to the Underwriter, to the effect that:
(i) this Purchase Agreement and the Continuing Disclosure Certificate have been duly authorized, executed and delivered by the Community Facilities District and, assuming due authorization, execution and delivery by the other parties thereto, as applicable, constitute the legal, valid and binding agreement of the Community Facilities District and are enforceable in accordance with their terms, except to the extent that enforceability may reasonably request be limited by moratorium, bankruptcy, reorganization, insolvency or other similar laws affecting creditors’ rights generally or by the exercise of an accounting, financial judicial discretion in accordance with general principles of equity or statistical nature set forth otherwise in appropriate cases and by limitations on legal remedies against public agencies in the Definitive Free Writing Prospectus State;
(ii) the Bonds are not subject to the registration requirements of the Securities Act, and the Prospectus Supplement Indenture is exempt from qualification under the Trust Indenture Act;
(iii) the information contained in the Official Statement on the cover and under the captions “THE 2025 BONDS” (other than the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&PDebt Service Schedule”), “AAASOURCES OF PAYMENT FOR THE BONDS,” by Fitch Ratings“TAX MATTERS” and in Appendices C and E to the Official Statement, Inc. (“Fitch”)are accurate insofar as such statements purport to summarize certain provisions of the Bonds, “AAA” by Dominion the Indenture and Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”)Counsel’s final approving opinion.
7. The Class M-1 Certificates shall have been rated “AA+” by S&Pletter of Disclosure Counsel, “AA+” by Fitchdated the Closing Date and addressed to the Community Facilities District and to the Underwriter, “AA to the effect that, without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official Statement, but on the basis of their participation in conferences with representatives of the Community Facilities District, the Special Tax Consultant and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Preliminary Official Statement as of its date and the Official Statement as of its date and as of the Closing Date contained or contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.except that no o
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company, PNMAC and the Selling Stockholder contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Depositor Company, PNMAC and the Selling Stockholder made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company, PNMAC and the Selling Stockholder of its their obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to you.
(c) The Selling Stockholder shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish LLP, counsels for the Selling Stockholder, to have furnished to the Underwriter their opinions, dated the Closing Date, substantially Date and addressed to the effect set forth Underwriter, in Exhibit A.form and substance reasonably satisfactory to you.
(bd) The Depositor Underwriter shall have received from ▇▇▇▇▇▇▇ Procter LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as you may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the Underwriter purpose of enabling them to pass upon such matters.
(e) The Company and PNMAC shall have furnished to you a certificate on behalf of the DepositorCompany and PNMAC, signed by each of the President, Senior Vice respective Chairman of the Board or the President and the principal financial or any Vice Presidentaccounting officer of each of the Company and PNMAC, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company and PNMAC in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and each of the Depositor has Company and PNMAC have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s or PNMAC’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has come been no Material Adverse Effect except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(f) The Selling Stockholder shall have furnished or caused to his attention that would lead him be furnished to believe that you at the Registration StatementClosing Date certificates of officers of the Selling Stockholder, reasonably satisfactory to you as to the accuracy of the representations and warranties of the Selling Stockholder herein at and as of such Closing Date, as of to the performance by the Selling Stockholder of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to such other matters as you may reasonably request.
(g) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to you, at the Execution Time and at the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingletters, or that the Prospectus, dated respectively as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated Execution Time and as of the Closing Date, in form and substance satisfactory to the Underwriteryou, to the effect confirming that they have performed certain specified procedures as a result are independent accountants within the meaning of which they have determined that such information as the Underwriter may reasonably request of an accounting, Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and stating in effect that:
(iv) in their opinion the audited financial or statistical nature set forth statements and financial statement schedules and pro forma financial statements included in the Definitive Free Writing Registration Statement, the Preliminary Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees reported on by them comply as to form with the applicable accounting records requirements of the Depositor and, where applicable, Act and the Mortgage Loan files of related rules and regulations adopted by the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.Commission;
Appears in 1 contract
Sources: Underwriting Agreement (Pennymac Financial Services, Inc.)
Conditions to the Obligations of the Underwriter. The obligations Underwriter hereby enters into this Note Purchase Agreement in reliance upon the representations and warranties of the Underwriter District contained herein and the representations and warranties to purchase be contained in the Certificates documents and instruments to be delivered on the Closing Date and upon the performance by the District and the Trustee of their respective obligations both on and as of the date hereof. Accordingly, the Underwriter’s obligations under this Note Purchase Agreement to purchase, to accept delivery of and to pay for the Notes on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties of
(a) on the part Closing Date, the Legal Documents shall have been duly authorized, executed and delivered by the District, all in substantially the forms heretofore submitted to the Underwriter, with only such changes as shall have been reasonably agreed to in writing by the Underwriter or accepted by the Underwriter as evidenced by its acceptance of delivery of the Depositor contained herein Notes, and shall be in full force and effect; and there shall be in full force and effect such resolutions and ordinances of the City Council, as the legislative body of the District as, in the opinion of Bond Counsel, shall be necessary or appropriate in connection with the transactions contemplated hereby;
(b) on the Closing Date, all necessary actions of City Council, as the legislative body of the District and the District relating to the issuance and sale of the Notes will have been taken and will be in full force and effect and will not have been amended, modified or supplemented;
(c) on or prior to the Closing Date, the Underwriter shall have received the following documents, in each case reasonably satisfactory in form and substance to the Underwriter:
(i) one copy of each of the Legal Documents, each duly executed and delivered by the respective parties thereto;
(ii) the approving opinion, dated the date hereof and addressed to the District, of Bond Counsel in substantially the form of Appendix [ ] to the Official Statement, and a letter of such counsel, dated the Closing Date, and addressed to the accuracy of the statements of the Depositor made in any Officers’ certificates pursuant Underwriter to the provisions hereof, effect that such opinion may be relied upon by the Underwriter to the performance by the Depositor same extent as if such opinion were addressed to them;
(iii) a supplemental opinion or opinions of its obligations hereunder and Bond Counsel addressed to the following additional conditions:Underwriter, in substantially the form attached hereto as Appendix A;
(aiv) ▇▇a letter of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP (“Disclosure Counsel”), dated the date of the Closing, addressed to the District, with a reliance letter addressed to the Underwriter, substantially in the form attached hereto as Appendix B;
(v) an opinion of ▇▇ & ▇▇▇▇ LLP shall have furnished ▇▇▇▇ LLP, counsel to the Underwriter opinionsUnderwriter, dated the Closing Date, and addressed to the Underwriter, substantially to the effect set forth in Exhibit A.
that: (ba) The Depositor shall based upon examinations which they have furnished made, which may be specified, and without having undertaken to determine independently the Underwriter a certificate accuracy, completeness or fairness of the Depositorstatements contained in the Preliminary Official Statement, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, nothing has come to the effect their attention which would lead them to believe that the signer Preliminary Official Statement, as of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on its date and as of the Closing Date with the same effect as if made on the Closing Datedate of this Note Purchase Agreement, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains contained any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
. Underwriter’s Counsel will express no belief or opinion as to any permitted omissions allowed pursuant to Rule 15c2-12 of the Securities and Exchange Commission relating to the details of the offering of the Notes such as offering prices, principal amounts, maturities, interest rates and other pricing information, credit ratings, delivery dates, redemption terms, selling compensation and other terms dependent on such matters, including without limitation, use of proceeds, CUSIP numbers, amounts of reserve funds, and other information not known or reasonably ascertainable on the date of the Preliminary Official Statement, or Appendices [ ] and [ ] to the Preliminary Official Statement, or as to any CUSIP numbers, financial, technical, statistical, economic, engineering, demographic or tabular data or forecasts, numbers, charts, tables, graphs, estimates, projections, assumptions or expressions of opinion included in the Preliminary Official Statement, or as to the information contained in the Preliminary Official Statement under the captions [“TAX MATTERS,” or “LITIGATION” or any information in the Preliminary Official Statement about the book-entry system, Cede & Co., or DTC; (b) based upon examinations which they have made, which may be specified, and without having undertaken to determine independently the accuracy, completeness or fairness of the statements contained in the Official Statement, nothing has come to their attention which would lead them to believe that the Official Statement, as of its date and as of the date of Closing, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Underwriter’s Counsel will express no belief or opinion as to Appendices [ ] and [ ] to the Official Statement or as to any CUSIP numbers, financial, technical, statistical, economic, engineering, demographic or tabular data or forecasts, numbers, charts, tables, graphs, estimates, projections, assumptions or expressions of opinion included in the Official Statement or as to the information contained in the Official Statement under the captions [“TAX MATTERS” or “LITIGATION”] or any information in the Official Statement about the book-entry system, Cede & Co., or DTC; (c) Deloitte & Touche LLP will have furnished the Notes are not subject to the Underwriter a letterregistration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; and (d) the Continuing Disclosure Certificate meets the requirements of Section (b)(5)(i) of Rule 15c2-12 under the Securities Exchange Act of 1934, as amended;
(vi) the opinion of the City Attorney, as counsel to the District, dated the Closing Date and addressed to the District and the Underwriter, substantially in the form attached hereto as Appendix C;
(vii) a certificate of a duly authorized official of the District, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect that they have performed certain specified procedures (A) the District’s representations and warranties contained in the Legal Documents are true and correct on and as a result of the Closing Date with the same effect as if made on the Closing Date; and (B) no event has occurred since the date of the Official Statement which either makes untrue or incorrect in any material respect as of the Closing Date any statement or information contained in the Official Statement, as then supplemented or amended or is not reflected in the Official Statement but should be reflected therein in order to make the statements therein, in light of the circumstances under which they have determined that such information as were made, not misleading in any material respect; provided, however, the Underwriter may reasonably request District makes no representation or warranty with respect to the Excluded Information;
(viii) a certificate of an accountinga duly authorized official of the Trustee, financial or statistical nature set forth in dated the Definitive Free Writing Prospectus Closing Date, to the effect that: (A) the Trustee is a national banking association organized and existing under and by virtue of the Prospectus Supplement laws of the United States, having the full power and being qualified to enter into and perform its duties under the caption “The Initial Mortgage Loans” Indenture and elsewhere therein agrees with to authenticate and deliver the accounting records of Notes to the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.Underwriter;
Appears in 1 contract
Sources: Note Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3, hereof, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ London LLP, counsel for the Company, to have furnished to the Underwriter its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, in a form reasonably acceptable to the Underwriter.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, in a form reasonably acceptable to the Underwriter.
(d) The Underwriter shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to (UK) LLP, counsel for the Underwriter Underwriter, such opinion or opinions, dated the Closing DateDate and any settlement date, substantially as applicable, and addressed to the effect set forth in Exhibit A.Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(be) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice President Chief Executive Officer and the principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has come been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused ▇▇▇▇▇▇ to his attention that would lead him have furnished to believe that the Registration StatementUnderwriter, at the Execution Time and at the Closing Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date, contains Date and any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectussettlement date, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Dateapplicable, in form and substance satisfactory to the Underwriter, .
(g) Subsequent to the effect that they have performed certain specified procedures Execution Time or, if earlier, the dates as a result of which they information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have determined that been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date and any settlement date, as applicable, the Company shall have furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of an accountingthe underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Global Market, financial or statistical nature set forth in satisfactory evidence of which shall have been provided to the Definitive Free Writing Prospectus Underwriter.
(k) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Founder's Subscription Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letters, the Registration and Shareholder Rights Agreement and the Prospectus Supplement under Administrative Services Agreement.
(l) At least one Business Day prior to the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor andClosing Date or a settlement date, where as applicable, the Mortgage Loan files Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the Depositornumber of Units issued in the Offering as of such Closing Date or such settlement date, excluding any questions as applicable, and the public offering price per Unit as set forth on the cover of legal interpretationthe Prospectus.
(dm) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been rated “AAA” issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by Standard & Poor’sthe Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 and, a division if applicable, the last sentence of The Section 3 shall be delivered at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇-▇ & ▇▇▇▇ Companies(UK) LLP, Inc. (“S&P”)counsel for the Underwriter, “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by at 40 ▇▇▇▇ ▇▇▇▇▇’▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ Investors Service▇▇▇▇▇▇▇, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P▇▇▇ ▇▇▇, “AA+” by FitchAttention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&Punless otherwise indicated herein, “AA+” by Fitchon the Closing Date or the applicable settlement date, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.as applicable.
Appears in 1 contract
Sources: Underwriting Agreement (Mountain & Co. I Acquisition Corp.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter's obligation to purchase the Certificates in the respective amounts set forth opposite their names on Schedule I attached hereto shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP 6.1 No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for that purpose shall be pending or, to the knowledge of the Company, threatened by the Commission or by any authority administering any state securities or Blue Sky law; and the Prospectus Supplement shall have furnished been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Company, the Seller or any of their respective affiliates the effect of which, in any case, is, in that Underwriter's reasonable judgment, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Certificates as contemplated by the Registration Statement and the Prospectus. All actions required to be taken and all filings required to be made by the Issuer under the Act and the Exchange Act prior to the sale of the Certificates shall have been duly taken or made.
6.3 The Company shall have delivered to the Underwriter opinionsa certificate, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, an Executive Vice President, a Senior Vice President or any a Vice President, dated President of the Closing Date, Company to the effect that the signer of such certificate has carefully examined this Agreement, the Registration Statement Prospectus, the Indenture, the Servicing Agreements, the Mortgage Loan Purchase Agreement, the Trust Agreement and the Prospectus various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(ia) The the representations and warranties of the Depositor Company in this Agreement and in the Trust Agreement are true and correct in all material respects on and as of respects;
(b) the Closing Date with the same effect as if made on the Closing DateCompany has, and the Depositor has in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(iic) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated;
(d) subsequent to the respective dates as of which information is given in the Prospectus, and except as set forth or contemplated in the Prospectus, there has not been any material adverse change in the general affairs, business, key personnel, capitalization, financial condition or results of operations of the Company or the Seller;
(e) except as otherwise stated in the Prospectus, there are no actions, suits or proceedings pending before any court or governmental agency, authority or body or, to his their knowledge, threatened, against the Company or the Seller that could reasonably have a material adverse affect on (i) the Company or the Seller or (ii) the transactions contemplated by this Agreement; and
(iiif) Nothing has come to his attention that would lead him to believe attached thereto are true and correct copies of a letter or letters from one or more nationally recognized statistical rating agencies confirming that the Registration StatementCertificates have been rated in one of the four highest grades by each of such agencies rating that class of Certificates and that such rating has not been lowered since the date of such letter.
6.4 The Company shall have delivered to the Underwriter a certificate, as of dated the Closing Date, contains any untrue statement of the President, an Executive Vice President, a material fact Managing Director or omits a Director of the Company to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or effect that the Prospectussigner of such certificate has examined the Servicing Agreements, as the Indenture, the Mortgage Loan Purchase Agreement, the Trust Agreement and this Agreement and that, to his or her knowledge after reasonable investigation, the representations and warranties of the Company contained in this Agreement are true and correct in all material respects.
6.5 The Seller shall have delivered to the Underwriter a certificate, dated the Closing Date, contains any untrue statement of the President, a material fact Managing Director or omits a Director of the Seller to state a material fact required the effect that the signer of such certificate has examined the Mortgage Loan Purchase Agreement and that, to be stated therein his or necessary to make her knowledge after reasonable investigation, the statements therein, representations and warranties of the Seller contained in the light of the circumstances under which they were made, not misleadingMortgage Loan Purchase Agreement are true and correct in all material respects.
(c) Deloitte 6.6 You shall have received the opinion and letter of Thacher Proffitt & Touche LLP will have furnished Wood LLP, counsel for the Company and the Seller, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ng ▇▇▇▇ and substantially to the Underwriter a lettereffect set forth in Exhibit A and Exhibit B [NOTE: Exhibit B will be revised to address the Definitive Free Writing Prospectus].
6.7 You shall have received from counsel for the Underwriter, an opinion dated as of the Closing Date, Date in form and substance satisfactory to the Underwriter.
(i) You shall have received from Deloitte & Touche LLP, certified public accountants, a letter addressed to the Underwriter and dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they have performed certain specified procedures procedures, all of which have been agreed to by the Underwriter, as a result of which they have determined that such certain information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “captions "The Initial Mortgage Loans” Pool" and elsewhere therein "Description of the Grantor Trust Certificates and the Notes" agrees with the accounting records of the Depositor and, where applicable, Company and the Mortgage Loan files of the Depositor, Seller excluding any questions of legal interpretation.
(dii) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4At the Closing Date, Class A-1, Class A-2 and Class A-3 Certificates Deloitte & Touche LLP and/or any other firm of certified independent public accountants acceptable to you shall have been rated “AAA” by Standard & Poor’sfurnished to you a letter, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companiesaddressed to you, Inc. (“S&P”and in form and substance satisfactory to you in all respects, relating to the extent such information is not covered in the letter or letters provided pursuant to Section 6.7(i), “AAA” by Fitch Ratingsto the characteristics of the mortgage loans, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.as presented in the Prospectus Supplement.
Appears in 1 contract
Sources: Underwriting Agreement (BNP Paribas Mortgage ABS LLC)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Offered Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof 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 Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇The Underwriter shall have received from Deloitte & Touche LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter and counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Date, updating the letter referred to in clause (i) above, 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 Offered Certificates shall have been duly taken and made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the knowledge of the Company or the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Offered Certificates; (ii) any downgrading in the ratings of the Mortgage Certificates by any “nationally recognized statistical rating organization” (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its ratings of the Mortgage Certificates (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, North Carolina or New York 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 Underwriter, 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 Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of an executive officer of the Company in which such officer shall state that, to the best of such officer’s knowledge after reasonable inspection, (i) the representations and warranties of the Company contained in the Basic Documents are true and correct with the same force and effect as if made on the Closing Date and (ii) 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.
(e) The Underwriter shall have received an opinion of reasonably acceptable counsel to the Trustee, dated the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(f) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall have furnished LLP, special counsel to the Underwriter opinionsCompany, dated the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(h) The Underwriter shall have received from Hunton & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Underwriter, a letter addressed to the Underwriter dated the Closing Date with respect to the Final Prospectus, substantially to the effect set forth that no facts have come to such counsel’s attention in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate course of its review of the DepositorFinal Prospectus which causes it to believe that the Final Prospectus, signed by as of the President, Senior Vice President date of the Prospectus Supplement or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains contained any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(ci) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(j) At the Closing Date, the Certificates and the Trust Agreement will conform in form all material respects to the descriptions thereof contained in the Final Prospectus.
(k) The Underwriter shall not have discovered and substance satisfactory 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 counsel to the Underwriter, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(l) All corporate proceedings and other legal matters relating to the effect authorization, form and validity of this Agreement, the Trust Agreement, the Mortgage Certificate Purchase Agreement, the Certificates, 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 have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationto enable them to pass upon such matters.
(dm) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Underwriter shall have been rated “AAA” by Standard received a certificate (upon which Hunton & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ CompaniesLLP shall be entitled to rely in rendering its opinions and letters under the Basic Documents) dated the Closing Date of an officer of the Trustee in which such officer shall state that, Inc. to the best of such officer’s knowledge after reasonable investigation: (i) the Trustee is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (ii) the information in the Prospectus Supplement related to the Trustee (the “S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRSTrustee Disclosure”) includes (a) the Trustee’s correct name and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. form of organization and (“Moody’s”)b) a discussion of the Trustee’s experience serving as trustee for asset-backed securities transactions involving mortgage loans; and (iii) the Trustee Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Trustee Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading. The Class M-1 Certificates Company will provide or cause to be provided to the Underwriter such conformed copies of such opinions, certificates, letters and documents as the Underwriter 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 Underwriter. If any condition specified in this Section 6 shall not have been rated “AA+” fulfilled when and as required to be fulfilled, this Agreement may be terminated by S&Pthe Underwriter by notice to the Company at any time at or prior to the Closing Date, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates such termination shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.be without liability of any party to any other party except as provided in Section 7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Funding 2008-R3 Trust)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter's obligation to purchase the Certificates shall be subject to the accuracy in all respects following conditions:
6.1 No stop order suspending the effectiveness of the representations Registration Statement shall be in effect, and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Dateno proceedings for that purpose shall be pending or, to the accuracy knowledge of the statements Company, threatened by the Commission; and the Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Depositor made Company, the Seller or any of their respective affiliates the effect of which, in any Officers’ certificates pursuant case, is, in that Underwriter's reasonable judgment, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Certificates as contemplated by the Registration Statement and the Prospectus. All actions required to be taken and all filings required to be made by the Issuer under the Act and the Exchange Act prior to the provisions hereof, to sale of the performance by the Depositor of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP Certificates shall have furnished been duly taken or made.
6.3 The Company shall have delivered to the Underwriter opinionsyou a certificate, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior or the Executive Vice President or any Vice President, dated of the Closing Date, Company to the effect that the signer of such certificate has carefully examined this Agreement, the Registration Statement Prospectus, the Pooling and the Prospectus Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(ia) The the representations and warranties of the Depositor Company in this Agreement and in the Pooling and Servicing Agreement are true and correct in all material respects on and as of respects; and
(b) the Closing Date with the same effect as if made on the Closing DateCompany has, and the Depositor has in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(iic) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated;
(d) subsequent to the respective dates as of which information is given in the Prospectus, and except as set forth or contemplated in the Prospectus, there has not been any material adverse change in the general affairs, business, key personnel, capitalization, financial condition or results of operations of the Company or the Seller;
(e) except as otherwise stated in the Prospectus, there are no actions, suits or proceedings pending before any court or governmental agency, authority or body or, to his their knowledge, threatened, against the Company or the Seller that could reasonably have a material adverse affect on (i) the Company or the Seller or (ii) the transactions contemplated by this Agreement; and
(iiif) Nothing has come to his attention that would lead him to believe attached thereto are true and correct copies of a letter or letters from one or more nationally recognized statistical rating agencies confirming that the Registration Statement, as Certificates have been rated in one of the Closing Datefour highest grades by each of such agencies rating that class of Certificates and that such rating has not been lowered since the date of such letter.
6.4 You shall have received the opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make special counsel for the statements therein not misleadingCompany, or that the Prospectus, as of dated the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished Date and substantially to the Underwriter a lettereffect set forth in Exhibit A and Exhibit B.
6.5 You shall have received from counsel for the Underwriter, an opinion dated as of the Closing Date, Date in form and substance satisfactory to the Underwriter.
6.6 The Underwriter shall have received from certified public accountants, a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they have performed certain specified procedures procedures, all of which have been agreed to by the Underwriter, as a result of which they have determined that such certain information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial captions "Description of the Mortgage Loans” Pool", "Pooling and elsewhere therein Servicing Agreement", "Description of the Certificates" and "Certain Yield and Prepayment Considerations" agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, Company excluding any questions of legal interpretation.
(d) 6.7 The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “"AAA” " by [each of] [Standard & Poor’s's Ratings Services] and [Fitch Ratings] and "Aaa" by [▇▇▇▇▇'▇ Investors Service, a division Inc.].
6.8 You shall have received the opinion of The [Trustee's Counsel], dated the Closing Date, substantially to the effect set forth in Exhibit C.
6.9 You shall have received from ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇▇▇ & ▇▇▇▇ LLP, special counsel to the Company, and from in-house counsel to the Company, reliance letters with respect to any opinions delivered to [Standard & Poor's Ratings Services] and [Fitch Ratings] and [▇▇▇▇▇'▇ Investors Service, Inc. (“Moody’s”)Inc.]. The Class M-1 Certificates shall have been rated “AA+” by S&PCompany will furnish you with conformed copies of the above opinions, “AA+” by Fitchcertificates, “AA (high)” by DBRS letters and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.documents as you reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (American Home Mortgage Securities LLC)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter Underwriters to purchase the Certificates Initial Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and Execution Time, the Closing DateDate and each Date of Delivery, as the case may be, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered by the Company to the Underwriter pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
: The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and on the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriter. A prospectus shall have been filed with the Commission in accordance with Rule 424(b). At the Closing Date, the Underwriter shall have received (ai) the favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-2 hereto and to such further effect as counsel to the Underwriter may reasonably request, and (ii) the favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior Vice President, General Counsel, Secretary and Corporate Compliance Officer of the Company, with responsibility for the legal affairs of the Company and its subsidiaries, in form and substance satisfactory to counsel for the Underwriter, to the effect set forth in Exhibit A-3 hereto and to such further effect as counsel to the Underwriter may reasonably request. At the Closing Date, the Underwriter shall have received the favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP LLP, counsel for the Underwriter, in form and substance reasonably satisfactory to the Underwriter. In giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States and the General Corporation Law of the State of Delaware, upon the opinions of counsel satisfactory to the Underwriter. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials. The Underwriter shall have furnished to the Underwriter opinions, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter received a certificate of the Depositor, signed by the President, Senior President or a Vice President of the Company and of the chief financial or any Vice Presidentchief accounting officer of the Company, dated as of the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The there has been no Material Adverse Change since the date hereof, (ii) the representations and warranties of the Depositor in this Agreement Section 1 hereof are true and correct in all material respects on with the same force and effect as though expressly made at and as of the Closing Date with the same effect as if made on the Closing Date, and (iii) the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
, and (iiiv) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that or are pending or are contemplated by the Registration Statement, as of Commission. At the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter shall have received from Ernst & Young LLP a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, Underwriter containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the effect that they financial statements and certain financial information contained in the Registration Statement and the Prospectus. At the Closing Date and each Date of Delivery, as the case may be, there shall not have performed certain specified procedures been, since the date hereof or since the respective dates as a result of which they have determined that such information as is given in the Underwriter may reasonably request of an accountingProspectus, any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or statistical nature set forth otherwise, or in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records earnings, business, prospects, properties or results of operations of the Depositor andCompany and its subsidiaries taken as a whole, where applicablewhether or not arising in the ordinary course of business, that, in the reasonable judgment of the Underwriter, makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus. At the Closing Date, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Securities shall have been rated “AAA” by Standard & Poor’sapproved for listing on the New York Stock Exchange, a division subject only to official notice of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”)issuance. The Class M-1 Certificates Underwriter shall have been rated “AA+” received each of the signed Lock-Up Agreements referred to in Section 5(i) hereof, and each such Lock-Up Agreement shall be in full force and effect at the Closing Date and the Delivery Date, as the case may be. In the event that the Underwriter exercises its option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by S&Pthe Company or any subsidiary of the Company hereunder shall be true and correct as of each Date of Delivery and, “AA+” by Fitchat the relevant Date of Delivery, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates the Underwriter shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.received:
Appears in 1 contract
Sources: Underwriting Agreement (Continental Airlines Inc /De/)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations representations, warranties and warranties agreements on the part of the Depositor Successor Agency contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the Successor Agency made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, and to the performance by the Depositor Successor Agency of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated At the Closing Date, substantially the Official Statement, the Indenture, the Escrow Agreement, this Bond Purchase Agreement and the Disclosure Certificate shall be in full force and effect in the form heretofore submitted to the effect set forth Underwriter, with only such changes as shall be agreed to in Exhibit A.writing by the Underwriter, and there shall have been taken in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate;
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated At the Closing Date, the Official Statement, the Indenture, the Escrow Agreement, this Bond Purchase Agreement and the Disclosure Certificate shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter;
(c) Between the date hereof and the Closing Date, the market price or marketability, at the initial public offering prices set forth in the Official Statement, of the Bonds shall not have been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the Successor Agency terminating the obligation of the Underwriter to accept delivery of and make any payment for the Bonds), by reason of any of the following:
(1) an amendment to the Constitution of the United States or the State of California shall have been passed or legislation shall have been introduced in or enacted by the Congress of the United States or the legislature of any state having jurisdiction of the subject matter or legislation pending in the Congress of the United States shall have been amended or legislation shall have been recommended to the Congress of the United States or to any state having jurisdiction of the subject matter or otherwise endorsed for passage (by press release, other form of notice or otherwise) by the President of the United States, the Treasury Department of the United States, the Internal Revenue Service or the Chairman or ranking minority member of the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of Representatives, or legislation shall have been proposed for consideration by either such Committee by any member thereof or presented as an option for consideration by either such Committee by the staff of such Committee or by the staff of the Joint Committee on Taxation of the Congress of the United States, or legislation shall have been favorably reported for passage to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or a decision shall have been rendered by a court of the United States or of the State of California or the Tax Court of the United States, or a ruling shall have been made or a regulation or temporary regulation shall have been proposed or made or any other release or announcement shall have been made by the Treasury Department of the United States, the Internal Revenue Service or other federal or State of California authority, with respect to federal or State of California taxation upon revenues or other income of the general character to be derived by the Authority or upon interest received on obligations of the general character of the Bonds which may have the purpose or effect, directly or indirectly, of affecting the tax status of the Authority, its property or income, its securities (including the Bonds) or the interest thereon, or any tax exemption granted or authorized by State of California legislation or materially and adversely affecting the market for the Bonds or the market price generally of obligations of the general character of the Bonds;
(2) legislation enacted, introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court established under Article III of the Constitution of the United States or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter shall have been made or issued to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended;
(3) any legislation, ordinance, rule or regulation shall be introduced in, or be enacted by any governmental body, department or agency of the State of California, or a decision by any court of competent jurisdiction within the State of California or any court of the United States of America shall be rendered which, in the reasonable opinion of the Underwriter, materially adversely affects the market price of the Bonds;
(4) the escalation in military hostilities or declaration by the United States of a national emergency or war, or other calamity or crisis or escalation thereof;
(5) the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange;
(6) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(7) an order, decree or injunction of any court of competent jurisdiction, or order, ruling, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, issued or made to the effect that the signer issuance, offering or sale of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties obligations of the Depositor in this Agreement are true and correct in all material respects on and as general character of the Closing Date with Bonds, or the same effect issuance, offering or sale of the Bonds, including any or all underlying obligations, as if made on contemplated hereby or by the Closing DateOfficial Statement, is or would be in violation of the federal securities laws as amended and 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 the Closing Datethen in effect;
(ii) No stop order suspending 8) any litigation shall be instituted, pending or threatened to restrain or enjoin the effectiveness issuance or sale of the Registration Statement has been issued and no proceedings for that purpose have been instituted orBonds or in any way contesting the validity of the Bonds or the Financing Documents, to his knowledge, threatened; andor the existence or powers of the Successor Agency;
(iii9) Nothing any event occurring, or information becoming known that, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement or has come to his attention that would lead him to believe the effect that the Registration Statement, as of the Closing Date, Official Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.;
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase accept delivery of and pay for the Certificates on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations representations, warranties and warranties agreements on the part of the Depositor District contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the District, the Corporation and the Trustee made in any Officers’ certificates or other documents furnished pursuant to the provisions hereofhereof or the Certificate Documents, and to the performance by the Depositor District, the Corporation, the Insurer and the Trustee of its their respective obligations to be performed hereunder and under the Certificate Documents at or prior to the Closing Date, and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated At the Closing Date, the Certificates, the Certificate Documents and the Official Statement shall have been duly authorized, executed and delivered by the respective parties thereto, in substantially the forms heretofore submitted to the effect set forth Underwriter with only such changes as shall have been agreed to by the Underwriter, and said documents shall not have been amended, modified or supplemented, except as may have been agreed to by the Underwriter, and there shall have been taken in Exhibit A.connection therewith, with the execution and delivery of the Certificates and with the transactions contemplated thereby and by this Purchase Agreement, all such actions as Special Counsel, shall deem to be necessary and appropriate;
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor District contained in this Purchase Agreement are true shall be true, correct and correct complete in all material respects on the date hereof and as of on the Closing Date with the same effect Date, as if made again on the Closing Date, and the Depositor has complied Official Statement (as the same may be supplemented or amended with the written approval of the Underwriter) shall be true, correct and complete in all the agreements material respects and satisfied all the conditions on its part such information shall not contain any untrue statement of fact or omit to state any fact required to be performed stated therein or satisfied at or prior necessary to make the statements therein relating to the District, in light of the circumstances under which such statements were made, not misleading;
(c) Between the date hereof and the Closing Date;, neither the market price nor marketability, or the ability of the Underwriter to enforce contracts for the sale of the Certificates, at the initial offering prices set forth in Exhibit A hereto and in the Official Statement, of the Certificates shall have been materially adversely affected, in the judgment of the Underwriter, by reason of any of the following:
(1) legislation enacted or introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court established under Article III of the Constitution of the United States or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made:
(i) by or on behalf of the Treasury Department of the United States or the Internal Revenue Service with the purpose or effect, directly or indirectly (except as described in the Official Statement), of imposing federal income taxation upon such interest as would be received by the owners of the Certificates, or
(ii) No stop order suspending the effectiveness by or on behalf of the Registration Statement has been issued Securities and no proceedings for that purpose have been instituted orExchange Commission, or any other governmental entity having jurisdiction of the subject matter, to his knowledgethe effect that obligations of the general character of the Certificates, threatened; andor the Certificates, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Trust Agreement is not exempt from qualification under the Trust Indenture Act of 1939, as amended;
(iii2) Nothing has come the declaration of war or engagement in or escalation of major military hostilities by the United States or the occurrence of any other national emergency or calamity relating to his attention that would lead him the effective operation of the government or of the financial community in the United States;
(3) the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange;
(4) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental entity, of any material restrictions not now in force with respect to believe the Certificates or obligations of the general character of the Certificates or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(5) an order, decree or injunction of any court of competent jurisdiction, or order, filing, regulation or official statement by the Securities and Exchange Commission, or any other governmental entity having jurisdiction of the subject matter, issued or made to the effect that the Registration issuance, offering or sale of obligations of the general character of the Certificates, or the execution, delivery, offering or sale of the Certificates, including any or all underlying obligations, as contemplated hereby or by the Official Statement, as is or would be in violation of the Closing Datefederal securities laws as then in effect;
(6) the occurrence of any adverse change of a material nature of the financial condition, results of operation or properties of the District;
(7) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material adverse respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
(8) there shall have occurred or any notices shall have been given of any intended downgrading, suspension, withdrawal, or negative change in credit watch by any national rating service to any of the District's obligations (without regard to any credit enhancement thereto);
(9) there shall have occurred or any notices shall have been given of any withdrawal, downgrading or placement on negative credit watch of any rating of the Insurer;
(10) the suspension by the Securities and Exchange Commission of trading in the outstanding securities of the District; or
(11) legislation enacted by or introduced in the legislature of the State, or favorably reported out of committee or a decision rendered by a court of the State, or a ruling, order, or regulation (final or temporary) made by State authority, which would have the effect of changing, directly or indirectly, the State tax consequences of interest on obligations of the general character of the Certificates in the hands of the holders thereof.
(1) the Official Statement and each Certificate Document, duly executed and delivered by the respective parties thereto, with such amendments, modifications or supplements as may have been agreed to by the Underwriter;
(2) an unqualified approving opinion, dated the Closing Date and addressed to the District, of Special Counsel, in substantially the form attached to the Official Statement as Appendix D, and a letter of such counsel, dated the Closing Date and addressed to the Underwriter, to the effect that such opinion may be relied upon by the ProspectusUnderwriter to the same extent as of such opinion were addressed to it;
(3) the supplemental opinion, dated the Closing Date and addressed to the Underwriter, of Special Counsel, substantially to the effect that (i) this
(4) an opinion, dated the Closing Date and addressed to the Underwriter, of ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, as disclosure counsel (“Disclosure Counsel”), substantially to the effect that, based upon its participation in the preparation of the Preliminary Official Statement and the Official Statement and without having undertaken to determine independently the fairness, accuracy or completeness of the statements contained in the Official Statement, Disclosure Counsel has no reason to believe that, as of its date and as of the Closing Datedate of the Closing, the Preliminary Official Statement and the Official Statement (excluding therefrom the reports, financial and statistical data and forecasts therein, the information included in Appendices B, C, F, G and H thereto, information relating to DTC and its book-entry system and information relating to the Insurer and its insurance policy and debt service reserve policy as to which no opinion need be expressed) contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(c5) Deloitte & Touche LLP will have furnished to a certificate of the Underwriter a letter, Trustee dated as of the Closing Date, in form and substance satisfactory to signed by a duly authorized officer of the UnderwriterTrustee, to the effect that they have performed certain specified procedures as (i) the Trustee is a result national banking association organized and existing under and by virtue of which they have determined that such information as the laws of the United States of America, having the full power and being qualified to enter into and perform its duties under the Trust Agreement and the Assignment Agreement and to execute and deliver the Certificates to the Underwriter may reasonably request pursuant to the Trust Agreement, (ii) when delivered to and paid for by the Underwriter on the Closing Date, the Certificates will have been duly executed and delivered by the Trustee, (iii) the execution and delivery of an accountingthe Trust Agreement and the Assignment Agreement and compliance with the provisions on the Trustee’s part contained therein, financial will not conflict with or statistical nature set forth constitute a breach of or default under any law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Trustee is a party or is otherwise subject (except that no representation, warranty or agreement is made with respect to any federal or state securities or blue sky laws or regulations), nor will any such execution, delivery, adoption or compliance result in the Definitive Free Writing Prospectus creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets held by the Trustee pursuant to the lien created by the Trust Agreement under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as provided by the Trust Agreement, and
(iv) there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental or public entity pending or, to the best knowledge of the Trustee, threatened against the Trustee, affecting the existence of the Trustee, or the titles of its officers to their respective offices or seeking to prohibit, restrain or enjoin the execution and delivery of the Certificates, or in any way contesting or affecting the validity or enforceability of the Trust Agreement and the Prospectus Supplement under Assignment Agreement or contesting the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records powers of the Depositor andTrustee or its Corporation to enter into, where applicable, the Mortgage Loan files adopt or perform its obligations under any of the Depositorforegoing to which it is a party, excluding any questions wherein an unfavorable decision, ruling or finding would materially adversely affect the validity or enforceability of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division the Trust Agreement or the Assignment Agreement or the ability of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.the Trustee to perform its obligations thereunder;
Appears in 1 contract
Sources: Certificate Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase and pay for the Certificates shall will be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor contained Banks herein as of on the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Depositor Banks made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Banks of its their respective obligations hereunder and to the following additional conditionsconditions precedent:
(a) ▇On or prior to the date hereof the Underwriter shall have received a letter (a "Procedures Letter"), dated the date of this Agreement of each of Price Waterhouse LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ verifying the accuracy of such financial and statistical data contained in the Prospectus as the Underwriter shall deem reasonably advisable. In addition, if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Underwriter shall have received a letter dated the Closing Date confirming each Procedures Letter and providing additional comfort on such new data;
(b) The Prospectus shall have been filed in the manner and within the time period required by Rule 424(b) of the Rules and Regulations; and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened;
(c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of any of the Banks, The Chase Manhattan Corporation, CITSF or The CIT Group Holdings, Inc. which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Certificates or makes it impractical to market the Certificates; (ii) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of any of the Banks or The Chase Manhattan Corporation, on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (iii) any banking moratorium declared by Federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Underwriter, the effect of any such outbreak, escalation, calamity or emergency on the United States financial markets makes it impracticable or inadvisable to proceed with completion of the sale of and any payment for the Certificates;
(d) The Underwriter shall have received opinions, dated the Closing Date and reasonably satisfactory, when taken together, in form and substance to the Underwriter, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Banks, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ LLP & Finger, special counsel to the Trust, and such other counsel otherwise reasonably acceptable to the Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(e) The Underwriter shall have received an opinion or opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Banks, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to certain matters relating to the transfers from each Bank to the Trust of its Receivables, with respect to the perfection of the Trust's interest in the Receivables transferred by Chase and with respect to the grant of a security interest in the Receivables to the Indenture Trustee, and an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, Special Counsel to the Trust, with respect to the perfection of the Trust's interest in the Receivables transferred by Chase USA and the Indenture Trustee's interests in the Receivables;
(f) The Underwriter shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇, counsel to the Servicer, such opinion or opinions, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to corporate and securities law matters.
(g) The Underwriter shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriter, such opinion or opinions, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to the validity of the Certificates, the Registration Statement, the Prospectus (including certain matters relating to the transfer to the Trust of security interests in California Financed Vehicles) and other related matters as the Underwriter may require, and the Banks shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters;
(h) The Underwriter shall have received an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special U.S. tax counsel to the Banks, dated the Closing Date and reasonably satisfactory in form and substance to the Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(i) The Underwriter shall have received form ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., special Oklahoma tax counsel to the Banks, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to such matters as are customary for the type of transaction covered by this Agreement.
(j) The Underwriter shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriter with respect to such matters as are customary for the transactions contemplated by this Agreement; In rendering such opinions, counsel to the Indenture Trustee may rely on the opinion of the office of the general counsel to the Indenture Trustee.
(k) The Underwriter shall have received an opinion of counsel to the Owner Trustee, and such other counsel reasonably satisfactory to the Underwriter and its counsel, dated the Closing Date and satisfactory in form and substance to the Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(l) The Certificates have been rated at least "A" by Standard & Poor's, A3 by ▇▇▇▇▇'▇ or "A+" by ▇▇▇▇ & ▇▇▇▇▇▇. The Class A-1 Notes shall have been rated "A-1+" by Standard & Poor's, P-1 by ▇▇▇▇▇'▇ and "D-1" by ▇▇▇▇ & ▇▇▇▇▇▇. The Notes other than the Class A-1 Notes shall have been rated "A" by Standard & Poor's, A3 by ▇▇▇▇▇'▇ and "A" by ▇▇▇▇ & ▇▇▇▇▇▇;
(m) The Underwriter shall have received a certificate, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter of an attorney-in-fact, a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Datemore senior officer of each Bank in which such person, to the effect best of his or her knowledge after reasonable investigation, shall state that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The the representations and warranties of the Depositor such Bank in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Depositor (ii) that such Bank has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
, (iiiii) No the representations and warranties of such Bank, as Seller, in the Sale and Servicing Agreement and, as Depositor, in the Trust Agreement, are true and correct as of the dates specified in the Sale and Servicing Agreement and the Trust Agreement, (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
or are threatened by the Commission and (iiiv) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains Prospectus does not contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under in which they were made, not misleading.;
(cn) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of On the Closing Date, all of the Notes shall have been issued and sold pursuant to the Note Underwriting Agreement; and
(o) CITSF, the Banks and the Underwriter on behalf of the Note Underwriters shall have entered into an Indemnification Agreement (the "Indemnification Agreement") satisfactory in form and substance satisfactory to the parties thereto. Each Bank will furnish the Underwriter, or cause the Underwriter to the effect that they have performed certain specified procedures as a result be furnished, with such number of which they have determined that conformed copies of such information opinions, certificates, letters and documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationrequests.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Sources: Certificate Underwriting Agreement (Chase Manhattan Bank Usa)
Conditions to the Obligations of the Underwriter. The obligations of ------------------------------------------------ the Underwriter to purchase the Certificates Securities, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company, the Operating Partnership and the Selling Stockholders contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Depositor Company, the Operating Partnership and the Selling Stockholders made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company, the Operating Partnership and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and 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 threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President and General Counsel of the Company, to have furnished to the Underwriter his opinion, dated the Closing Date and addressed to the Underwriter, to the effect that:
(i) the Company is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly organized, is validly existing as a corporation, limited or general partnership or limited liability company, as the case may be, in good standing under the laws of the jurisdiction of its organization, has the power and authority to own and lease its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) the outstanding shares of Common Stock (including the Securities), Class A Preferred Stock and Class B Preferred Stock have been duly authorized and validly issued and are fully paid and non-assessable and none of such shares was issued in violation of any preemptive or similar rights;
(iv) the outstanding Ownership Interests in each subsidiary have been duly authorized and validly issued, are fully paid and (except for general partnership interests) non-assessable; all of the outstanding limited partnership interests in the Operating Partnership are owned (except as otherwise set forth in the Prospectus) directly by the Company, all of the outstanding general partnership interests in the Operating Partnership are owned directly by the Company, and all of the Company's Ownership Interests in each of the other subsidiaries are owned directly or indirectly by the Company, in each case free and clear of all liens, encumbrances, equities or claims, except for liens created by the Pledge Agreement;
(v) this Agreement has been duly authorized, executed and delivered by the Company and the Operating Partnership;
(vi) the execution and delivery by the Company and the Operating Partnership of, and the performance by the Company and the Operating Partnership of their respective obligations under, this Agreement will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, the Credit Agreement, any Senior Note Document or, to the best of such counsel's knowledge, any other agreement or instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (B) result in a breach or violation of or default under any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries; and no consent, approval, authorization or order of, or qualification with, any Maryland or Delaware governmental body or agency having jurisdiction over the Company or the Operating Partnership is required under the laws of the State of Maryland or the Delaware Revised Uniform Limited Partnership Act (the "Partnership Act") for the offering, issuance or sale of the Securities as contemplated by this Agreement, except such as may be required by Maryland securities laws;
(vii) the statements (A) in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999 (the "1999 10-K") under the captions "Business and Properties--Environmental and Regulatory Matters," "Business and Properties--The Leases," "Business and Properties--The Management Agreements" and "Business and Properties--Non-Competition Agreements," (B) in the 1999 10-K under the caption "Legal Proceedings," as supplemented by the information in note (14) to the financial statements included in the Company's Quarterly Report on Form 10-Q for the quarter ended September 8, 2000 and (C) in the Company's Proxy Statement dated April 17, 2000 under the caption "Certain Relationships and Related Transactions," in each case insofar as such statements constitute summaries of legal matters, documents or proceedings, are accurate in all material respects;
(viii) to the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required;
(ix) the Company and its subsidiaries (A) are in compliance with any and all applicable Environmental Laws, (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole; and
(x) each document filed pursuant to the Exchange Act and incorporated or deemed to be incorporated by reference in the Registration Statement or the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act (except for financial statements and schedules and other financial and statistical data, as to which such counsel need not express any opinion) complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder. In passing upon compliance as to form of such documents, such counsel may assume that the statements made and incorporated by reference therein are correct and complete.
(c) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall L.L.P., counsel for the Company and the Operating Partnership, to have furnished to the Underwriter opinionstheir opinion, dated the Closing Date, substantially Date and addressed to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing DateUnderwriter, to the effect as set forth in Schedule III.
(d) In addition to the opinions set forth above in Sections 6(b) and 6(c), respectively, ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., will each also state that such counsel has participated in conferences with officers and other representatives of the signer Company, representatives of such certificate has carefully examined the independent public accountants for the Company, and representatives of the Underwriter, at which the contents of the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Daterelated matters were discussed and, although such counsel may state that such counsel is not passing upon, and does not assume any responsibility for the Depositor has complied with all accuracy, completeness or fairness of, the agreements and satisfied all the conditions on its part to be performed statements contained or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of incorporated by reference in the Registration Statement and the Prospectus and such counsel has been issued not made any independent check or verification thereof (except as set forth in Section 6(b)(vii) and (c) and (g) of Schedule III, respectively), during the course of such participation, no proceedings for that purpose have been instituted or, facts came to his knowledge, threatened; and
(iii) Nothing has come to his such counsel's attention that would lead him have caused such counsel to believe that the Registration Statement, as of at the Closing Datetime it became effective, contains any contained an untrue statement of a material fact or omits omitted to state any a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of its date or as of the Closing Datedate of such opinion, contained or contains any an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that such counsel may state that they express no belief with respect to the financial statements, schedules and other financial and statistical data included or incorporated by reference in or omitted from the Registration Statement or the Prospectus. The opinions of ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. described in Sections 6(b) and 6(c) above shall state, solely in the case of those opinions of counsel which refer to subsidiaries of the Company, that all references in such opinions to "subsidiaries" of the Company include, without limitation, the Operating Partnership and the Non- Controlled Subsidiaries. In addition, the opinion of ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall state that it covers matters arising under the laws of the State of Maryland, the general corporation law of the State of Delaware (the "DGCL"), the Partnership Act, the Delaware Limited Liability Company Act and the federal laws of the United States, and shall further state that, to the extent that the opinion set forth in Section 6(b)(vi) relates to any instrument or agreement which is governed by the laws of any jurisdiction other than the State of Maryland, such counsel has assumed that the laws of such other jurisdiction are in all relevant respects identical to the laws of the State of Maryland; the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall state that it covers matters arising under the laws of the State of New York, the State of Maryland, the Partnership Act and the federal laws of the United States.
(ce) Deloitte The Selling Stockholders shall have requested and caused ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Touche LLP will ▇▇▇▇▇▇▇▇, counsel for the Selling Stockholders, to have furnished to the Underwriter a lettertheir opinion, dated as of the Closing Date, in form Date and substance satisfactory addressed to the Underwriter, to the effect that:
(i) Each Selling Stockholder is the sole registered owner of the Securities to be sold by such Selling Stockholder; each Selling Stockholder has full partnership or corporate power, right and authority to sell such Securities and upon payment for and delivery of the Securities in accordance with this Agreement, the Underwriter will acquire a security entitlement (within the meaning of the UCC) with respect to the Securities and will also acquire their interest in the Securities free of any adverse claim (within the meaning of the UCC), assuming that they the Underwriter does not have performed certain specified procedures notice of any adverse claim (within the meaning of the UCC) to the Securities and assuming further that the transfer agent for the Company's Common Stock properly performs the instructions provided by the Selling Stockholders and delivers the Securities by book-entry transfer to the Underwriter.
(ii) This Agreement has been duly authorized, executed and delivered by or on behalf of each Selling Stockholder.
(iii) The sale of the Securities by the Selling Stockholders and the compliance by the Selling Stockholders with all of the provisions of this Agreement will not breach or result in a default under any indenture or other agreement or instrument identified on a schedule annexed to such opinion furnished to such counsel by the Selling Stockholders and which each Selling Stockholder has represented lists all material instruments to which such Selling Stockholder is a party or by which such Selling Stockholder is bound or to which any of the property or assets of such Selling Stockholder is subject, nor will such action violate the constituting documents of any Selling Stockholder or any Federal or New York statute or the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or any rule or regulation issued pursuant to any Federal or New York statute or the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or any order known to such counsel issued pursuant to any Federal or New York statute or the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act by any court or governmental agency or body or court having jurisdiction over any Selling Stockholder or any of its properties.
(iv) No consent, approval, authorization, order, registration or qualification of or with any Federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act or, to our knowledge, any Federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law or the Delaware Revised Uniform Limited Partnership Act is required for the sale of the Securities by the Selling Stockholders and the compliance by the Selling Stockholders with all of the provisions of this Agreement, except for the registration under the Act of the Securities, and such consents, approvals, authorizations, registrations or qualifications as a result may be required under state securities or Blue Sky laws in connection with the purchase and distribution of which they the Securities by the Underwriter.
(f) The Underwriter shall have determined that received from ▇▇▇▇▇ & Wood LLP, counsel for the Underwriter, such information opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably request of an accountingrequire, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under Company and each Selling Stockholder shall have furnished to such counsel such documents as they request for the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records purpose of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationenabling them to pass upon such matters.
(dg) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Company shall have been rated “AAA” furnished to the Underwriter and to the Selling Stockholders a certificate of the Company, signed by Standard & Poor’san executive officer and the principal financial or accounting officer of the Company, a division in their capacity as executive officers of The ▇▇▇▇▇▇-▇▇▇▇ Companiesthe Company and in their capacity as executive officers of the general partner of the Operating Partnership, Inc. dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”i) the representations and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS warranties of the Company and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS the Operating Partnership in this Agreement are true and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS correct on and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.as of the Closing Date with the same effec
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Firm Units and the Option Units, if any, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Partnership Parties contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date, to the accuracy of the statements of the Depositor General Partner or the Partnership made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Partnership Parties of its their obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Partnership pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Partnership shall have requested and caused Holland & ▇▇▇▇ LLP, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A. and ▇▇▇▇▇ and ▇▇▇▇▇ LLP, special counsel for the Partnership, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, general counsel to the General Partner, to have furnished to the Underwriter their respective legal opinions, dated the Closing Date and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter, substantially in the form set forth on Exhibits ▇-▇, ▇-▇, ▇-▇ and B-4 hereto.
(i) In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama, the State of Colorado or the State of Texas, the Delaware Limited Liability Company Act or the Delaware Revised Uniform Limited Partnership Act or the federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriter and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the General Partner and public officials.
(c) The Underwriter shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have furnished to LLP, counsel for the Underwriter Underwriter, such opinion or opinions, dated the Closing Date, substantially Date and addressed to the effect set forth in Exhibit A.Underwriter, with respect to the issuance and sale of the Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(bd) The Depositor General Partner shall have furnished to the Underwriter a certificate of the Depositorofficers of the General Partner, signed by the President, Senior Vice Chairman of the Board of Directors or the President and the principal financial or any Vice Presidentaccounting officer of the General Partner, dated the Closing Date, Date to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, the Disclosure Package, the Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Units, and this Agreement and that:
(i) The the representations and warranties of the Depositor Partnership Parties in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor has Partnership Parties have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Partnership’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has come to his attention that would lead him to believe that been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(e) The Underwriter shall have received from each of (i) PricewaterhouseCoopers LLP customary comfort letters dated respectively as of the Execution Time and as of the Closing Date, contains any untrue statement and addressed to the Underwriter in the forms satisfactory to the Underwriter, which letters shall cover, without limitation, the Partnership Financial Statements contained in the Registration Statement, the Preliminary Prospectuses, the Prospectus and each Permitted Free Writing Prospectus; (ii) UHY LLP customary comfort letters dated respectively as of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, Execution Time and as of the Closing Date, contains and addressed to the Underwriter in the forms satisfactory to the Underwriter, which letters shall cover, without limitation, the High Point System Financial Statements contained in the Registration Statement, the Preliminary Prospectuses, the Prospectus and each Permitted Free Writing Prospectus and (iii) MaloneBailey, LLP customary comfort letters dated respectively as of the Execution Time and as of the Closing Date, and addressed to the Underwriter in the forms satisfactory to the Underwriter, which letters shall cover, without limitation, the Blackwater Financial Statements contained in the Registration Statement, the Preliminary Prospectuses, the Prospectus and each Permitted Free Writing Prospectus. References to the Prospectus in this paragraph (e) include any untrue statement supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a material fact prospective change, in or omits affecting the condition (financial or otherwise), earnings, business or properties of the Partnership Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to state a material fact required to be stated therein in clause (i) or necessary to make the statements therein(ii) above, is, in the light sole judgment of the circumstances under which they were madeUnderwriter, not misleadingso material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(cg) Deloitte & Touche LLP will Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Partnership shall have furnished to the Underwriter such further information, certificates and documents as the Underwriter may reasonably request.
(i) The Firm Units and the Option Units, if any, shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance.
(j) At the Execution Time, the parties set forth on Schedule IV hereto shall have furnished to the Underwriter a letter, dated as letter substantially in the form of Exhibit A hereto. If any of the Closing Dateconditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance satisfactory to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the effect that they have performed certain specified procedures as a result Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard ▇▇▇▇▇▇ & Poor’s, a division of The ▇▇▇▇▇▇-▇ LLP, counsel for the Underwriter, at ▇▇▇ ▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇, ▇▇▇▇▇ Investors Service▇▇▇▇, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P▇▇▇▇▇▇▇, “AA+” by Fitch▇▇ ▇▇▇▇▇, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (American Midstream Partners, LP)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-43, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AAAA (high)” by DBRS and “Aa2Aa1” by Moody’s. The Class M-3 Certificates shall have been rated “AA-“ by S&P, “AA-“ by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 M-5 Certificates shall have been rated “A+A” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3A2” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1A3” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa1” by Moody’s. The Class M-9 Certificates shall have been rated “BBB-” by S&P, “BBB” by Fitch, “BBB” by DBRS and “Baa2” by Moody’s. The Class M-9 M-10 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” Baa3 by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
(e) The Underwriter shall have received the opinion of the Counsel to the Trustee, substantially to the effect set forth in Exhibit B.
(f) The Underwriter shall have received the opinion of the Counsel, dated as of the Closing Date, to the Servicers in form and substance satisfactory to the Underwriter.
(g) Subsequent to the date hereof, there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Depositor, which the Underwriter concludes in its judgment materially impairs the investment quality of the Certificates so as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Certificates as contemplated by the Prospectus.
(h) The Depositor shall have furnished to the Underwriter any other opinion of counsel delivered to the Rating Agencies in connection with the rating of the Certificates.
(i) The Underwriter shall have received indemnification letters from each of the Servicers for the information provided by each respective servicer for inclusion in the Prospectus Supplement. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Depositor in writing, or by telephone or telegraph confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (Home Equity Mortgage Pass-Through Certificates, Series 2006-3)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter's obligation to purchase the Certificates shall be subject to the accuracy in all respects following conditions:
6.1 No stop order suspending the effectiveness of the representations Registration Statement shall be in effect, and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Dateno proceedings for that purpose shall be pending or, to the accuracy knowledge of the statements Company, threatened by the Commission; and the Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Depositor made Company, ____________________, a ____________ (the "Seller") or any of their respective affiliates the effect of which, in any Officers’ certificates pursuant case, is, in that Underwriter's reasonable judgment, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Certificates as contemplated by the Registration Statement and the Prospectus. All actions required to be taken and all filings required to be made by the Issuer under the Act and the Exchange Act prior to the provisions hereof, to sale of the performance by the Depositor of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP Certificates shall have furnished been duly taken or made.
6.3 The Company shall have delivered to the Underwriter opinionsyou a certificate, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by President or the President, Senior Executive Vice President or any Vice President, dated of the Closing Date, Company to the effect that the signer of such certificate has carefully examined this Agreement, the Registration Statement Prospectus, the Pooling and the Prospectus Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(ia) The the representations and warranties of the Depositor Company in this Agreement and in the Pooling and Servicing Agreement are true and correct in all material respects on and as of respects;
(b) the Closing Date with the same effect as if made on the Closing DateCompany has, and the Depositor has in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(iic) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated;
(d) subsequent to the respective dates as of which information is given in the Prospectus, and except as set forth or contemplated in the Prospectus, there has not been any material adverse change in the general affairs, business, key personnel, capitalization, financial condition or results of operations of the Company or the Seller;
(e) except as otherwise stated in the Prospectus, there are no actions, suits or proceedings pending before any court or governmental agency, authority or body or, to his their knowledge, threatened, against the Company or the Seller that could reasonably have a material adverse affect on (i) the Company or the Seller or (ii) the transactions contemplated by this Agreement; and
(iiif) Nothing has come to his attention that would lead him to believe attached thereto are true and correct copies of a letter or letters from one or more nationally recognized statistical rating agencies confirming that the Registration Statement, as Certificates have been rated in one of the Closing Datefour highest grades by each of such agencies rating that class of Certificates and that such rating has not been lowered since the date of such letter.
6.4 You shall have received the opinions of SNR ▇▇▇▇▇▇ US LLP, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make special counsel for the statements therein not misleadingCompany, or that the Prospectus, as of dated the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished Date and substantially to the Underwriter a lettereffect set forth in Exhibit A and Exhibit B.
6.5 You shall have received from counsel for the Underwriter, an opinion dated as of the Closing Date, Date in form and substance satisfactory to the Underwriter.
6.6 The Underwriter shall have received from certified public accountants, a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they have performed certain specified procedures procedures, all of which have been agreed to by the Underwriter, as a result of which they have determined that such certain information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial captions "Description of the Mortgage Loans” Pool", "Pooling and elsewhere therein Servicing Agreement", "Description of the Certificates" and "Certain Yield and Prepayment Considerations" agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, Company excluding any questions of legal interpretation.
(d) 6.7 The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “"AAA” " by [each of] [Standard & Poor’s, a division of The 's Ratings Services] and [Fitch Ratings] and "Aaa" by [▇▇▇▇▇▇-▇▇▇'▇ CompaniesInvestors Service, Inc. (“S&P”)Inc.].
6.8 You shall have received the opinion of [Trustee's Counsel], “AAA” by Fitch Ratingsdated the Closing Date, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by substantially to the effect set forth in Exhibit C.
6.9 You shall have received from SNR ▇▇▇▇▇’▇ US LLP, special counsel to the Company, and from in-house counsel to the Company, reliance letters with respect to any opinions delivered to [Standard & Poor's Ratings Services] and [Fitch Ratings] and [▇▇▇▇▇'▇ Investors Service, Inc. (“Moody’s”)Inc.]. The Class M-1 Certificates shall have been rated “AA+” by S&PCompany will furnish you with conformed copies of the above opinions, “AA+” by Fitchcertificates, “AA (high)” by DBRS letters and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.documents as you reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Opteum Mortgage Acceptance CORP)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates shall be subject to the accuracy hereby enters into this Bond Purchase Agreement in all respects of reliance upon the representations and warranties of the Authority and the City contained herein and the representations and warranties to be contained in the documents and instruments to be delivered on the part Closing Date and upon the performance by the Authority, the City, and the Trustee of the Depositor contained herein their respective obligations both on and as of the date hereof and hereof. Accordingly, the Underwriter’s obligations under this Bond Purchase
(a) on the Closing Date, the Legal Documents and the City’s Legal Documents shall have been duly authorized, executed and delivered by the Authority and by the City where each is a party, all in substantially the forms heretofore submitted to the accuracy Underwriter, with only such changes as shall have been reasonably agreed to in writing by the Underwriter or accepted by the Underwriter as evidenced by its acceptance of delivery of the statements Bonds, and shall be in full force and effect; and there shall be in full force and effect such resolutions and ordinances of the Depositor made Board of Commissioners of the Authority and the City Council as, in any Officers’ certificates pursuant the opinion of Bond Counsel, shall be necessary or appropriate in connection with the transactions contemplated hereby;
(b) on the Closing Date, all necessary action of the Authority and the City relating to the provisions hereofissuance and sale of the Bonds will have been taken and will be in full force and effect and will not have been amended, modified or supplemented;
(c) on or prior to the performance by Closing Date, the Depositor of its obligations hereunder Underwriter shall have received the following documents, in each case reasonably satisfactory in form and substance to the following additional conditionsUnderwriter:
(ai) one copy of each of the Legal Documents and the City’s Legal Documents, each duly executed and delivered by the respective parties thereto;
(ii) the approving opinion, dated the date hereof and addressed to the Authority and the City, of Bond Counsel in substantially the form of Appendix [D] to the Official Statement, and a letter of such counsel, dated the Closing Date, and addressed to the Underwriter to the effect that such opinion may be relied upon by the Underwriter to the same extent as if such opinion were addressed to them;
(iii) a supplemental opinion or opinions of Bond Counsel addressed to the Underwriter, in substantially the form attached hereto as Appendix A;
(iv) a letter of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished ▇▇, a Professional Corporation (“Disclosure Counsel”), dated the date of the Closing, addressed to the Underwriter opinionsAuthority and the City, with a reliance letter addressed to the Underwriter, substantially in the form attached hereto as Appendix B;
(v) an opinion of ▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Underwriter, dated the Closing Date, and addressed to the Underwriter, substantially to the effect set forth in Exhibit A.
that: (ba) The Depositor shall based upon examinations which they have furnished made, which may be specified, and without having undertaken to determine independently the Underwriter a certificate accuracy, completeness or fairness of the Depositorstatements contained in the Preliminary Official Statement, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, nothing has come to the effect their attention which would lead them to believe that the signer Preliminary Official Statement, as of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on its date and as of the Closing Date with date of this Bond Purchase Agreement, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the same effect statements therein, in the light of the circumstances under which they were made, not misleading. Underwriter’s Counsel will express no belief or opinion as if made to any permitted omissions allowed pursuant to Rule 15c2-12 of the Securities and Exchange Commission relating to the details of the offering of the Bonds such as offering prices, principal amounts, maturities, interest rates and other pricing information, credit ratings, delivery dates, redemption terms, selling compensation and other terms dependent on such matters, including without limitation, use of proceeds, CUSIP numbers, amounts of reserve funds, and other information not known or reasonably ascertainable on the Closing Datedate of the Preliminary Official Statement, or Appendices [D and E] to the Preliminary Official Statement, or as to any CUSIP numbers, financial, technical, statistical, economic, engineering, demographic or tabular data or forecasts, numbers, charts, tables, graphs, estimates, projections, assumptions or expressions of opinion included in the Preliminary Official Statement, or as to the information contained in the Preliminary Official Statement under the captions “TAX MATTERS,” “LITIGATION” or “APPENDIX A—LITIGATION POTENTIALLY ADVERSELY AFFECTING THE GENERAL FUND” or any information in the Preliminary Official Statement about the book-entry system, Cede & Co., or DTC; (b) based upon examinations which they have made, which may be specified, and without having undertaken to determine independently the Depositor has complied with all the agreements and satisfied all the conditions on its part to be performed accuracy, completeness or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness fairness of the Registration Statement has been issued and no proceedings for that purpose have been instituted orstatements contained in the Official Statement, to his knowledge, threatened; and
(iii) Nothing nothing has come to his their attention that which would lead him them to believe that the Registration Official Statement, as of its date and as of the Closing Datedate of Closing, contained or contains any untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading. Underwriter’s Counsel will express no belief or opinion as to Appendices [D and E] to the Official Statement or as to any CUSIP numbers, financial, technical, statistical, economic, engineering, demographic or tabular data or forecasts, numbers, charts, tables, graphs, estimates, projections, assumptions or expressions of opinion included in the Official Statement or as to the information contained in the Official Statement under the captions “TAX MATTERS,” “LITIGATION” or “APPENDIX A—LITIGATION POTENTIALLY ADVERSELY AFFECTING THE GENERAL FUND” or any information in the Official Statement about the book-entry system, Cede & Co., or DTC; (c) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Indenture is exempt from qualification under the Trust Indenture Act of 1939, as amended; and (d) the Continuing Disclosure Certificate meets the requirements of Section (b)(5)(i) of Rule 15c2-12 under the Securities Exchange Act of 1934, as amended;
(vi) the opinion of the General Counsel to the Authority dated the Closing Date and addressed to the Underwriter, substantially to the effect that:
(A) the Authority is a joint exercise of powers authority duly organized and validly existing under the laws of the State of California; (B) the resolution of the Authority approving and authorizing the execution and delivery by the Authority of the Legal Documents and the Bonds and the preparation and distribution of the Preliminary Official Statement and the Official Statement (the “Authority Resolution”) was duly adopted at a meeting of the Authority that was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout, and is in full force and effect and has not been amended or repealed; (C) other than as otherwise disclosed in the Official Statement, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body, pending or, to the best knowledge of such counsel after reasonable investigation, threatened against or affecting the Authority, to restrain or enjoin the execution, delivery or sale of the Bonds or the collection or payment of Revenues that are the source of security for the Bonds, or the pledge thereof, or in any way contesting or affecting the validity or enforceability of the Bonds or the Legal Documents, or in any way contesting or affecting the existence of the Authority or the title of any official of the Authority to such person’s office, or contesting the power of the Authority or its authority with respect to the Bonds or the Legal Documents or contesting the exclusion of interest on the Bonds from gross income for federal income tax purposes or contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement or any supplement or amendment thereto or asserting that the Prospectus, as of Preliminary Official Statement or the Closing Date, contains Official Statement contained any untrue statement of a material fact or omits omitted to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(cD) Deloitte & Touche LLP the execution and delivery of the Bonds and the Legal Documents, the adoption of the Authority Resolution, and compliance by the Authority with the provisions of the Bonds, the Legal Documents and the Authority Resolution, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the Authority a breach or default under any agreement or other instrument to which the Authority is a party (and of which such counsel is aware after reasonable investigation) or by which it is bound or by any existing law, regulation, court order or consent decree to which the Authority is subject; (E) the Legal Documents have furnished been duly authorized, executed and delivered by the Authority and, assuming due authorization, execution and delivery by the other parties thereto, constitute legal, valid and binding agreements of the Authority enforceable in accordance with their respective terms, subject to laws relating to bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and the limitations on legal remedies against public agencies in the State and the application of equitable principles if equitable remedies are sought; and (F) no authorization, approval, consent, or other order of the United States of America, the State, or any other governmental authority or agency within the State having jurisdiction over the Authority is required for the valid authorization, execution, delivery and performance by the Authority of the Legal Documents or for the adoption of the Authority Resolution which has not been obtained;
(vii) the opinion of the City Attorney, dated the Closing Date and addressed to the Underwriter Authority and the Underwriter, substantially in the form attached hereto as Appendix C;
(viii) a lettercertificate of a duly authorized official of the Authority, dated as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect that they have performed certain specified procedures (A) the Authority’s representations and warranties contained in the Legal Documents are true and correct on and as a result of the Closing Date with the same effect as if made on the Closing Date; and (B) no event has occurred since the date of the Official Statement which either makes untrue or incorrect in any material respect as of the Closing Date any statement or information contained under the headings “THE AUTHORITY” or “LITIGATION” (as it relates to the Authority) in the Official Statement, as then supplemented or amended or is not reflected in such statements or information in the Official Statement but should be reflected therein in order to make the statements therein, in the light of the circumstances under which they have determined were made, not misleading in any material respect;
(ix) a certificate of a duly authorized official of the City, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriter, to the effect that such information as (A) the Underwriter may reasonably request of an accounting, financial or statistical nature set forth City’s representations and warranties contained in the Definitive Free Writing Prospectus City’s Legal Documents are true and correct on and as of the Prospectus Supplement Closing Date with the same effect as if made on the Closing Date; and (B) no event has occurred since the date of the Official Statement which either makes untrue or incorrect in any material respect as of the Closing Date any statement or information contained in the Official Statement, as then supplemented or amended or is not reflected in the Official Statement but should be reflected therein in order to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect; provided, however, the City makes no representation or warranty with respect to the Excluded Information;
(x) a certificate of a duly authorized official of the Trustee, dated the Closing Date, to the effect that: (A) the Trustee is a national banking association organized and existing under and by virtue of the laws of the United States, having the full power and being qualified to enter into and perform its duties under the caption “The Initial Mortgage Loans” Indenture and elsewhere therein agrees with to authenticate and deliver the accounting records of Bonds to the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.Underwriter;
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Firm Shares and the Option Shares, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any subsequent settlement date (solely with respect to the Option Shares) pursuant to Section 3 hereof (except to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)), to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP LLP, counsel for the Company, shall have furnished to the Underwriter opinionsUnderwriter, at the request of the Company, their written opinions and 10b-5 statement, dated the Closing Date or the Option Closing Date, substantially as the case may be, and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter, to the effect set forth in Exhibit A.B hereto.
(bc) The Depositor Underwriter shall have received the opinion of ▇▇▇▇▇▇▇▇ and Wedge, opining as to the law of Nevada, addressed to the Underwriter and dated the Closing Date, to the effect set forth in Exhibit C hereto.
(d) The Underwriter shall have received on and as of the Closing Date or the Option Closing Date, as the case may be, an opinion and 10b-5 statement of Proskauer Rose LLP, counsel for the Underwriter, with respect to such matters as the Underwriter may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(e) On or before the execution of this Agreement, the Underwriter shall have received from NSA a letter addressed to the Underwriter in the form and substance reasonably satisfactory to the Underwriter containing statements and information with respect to the oil and gas reserves of the Company and its subsidiaries and of the COP Assets as reported in the Disclosure Package and the Final Prospectus, and, as of the Closing, such letter shall not have been withdrawn by NSA or amended by NSA in any material respect.
(f) The Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the PresidentChairman of the Board, Senior Vice the President and Chief Executive Officer and the principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the Prospectus offering of the Shares, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date (except to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)) and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that since the Registration Statement, as date of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the most recent financial statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, included in the light Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or contemplated in the circumstances under which they were made, not misleadingDisclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(cg) Deloitte & Touche At the time of the execution of this Agreement, KPMG LLP will shall have furnished to the Underwriter a letter, dated as of the Closing Datedate hereof and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the effect financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, that they the letter delivered shall use a “cut-off” date no more than three (3) business days prior to the date hereof.
(1) At the time of the execution of this Agreement, Ernst & Young LLP shall have performed furnished to the Underwriter a letter, dated the date hereof and addressed to the Underwriter, in form and substance reasonably satisfactory to the Underwriter, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain specified procedures financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus; provided, that the letter delivered shall use a “cut-off” date no more than three (3) business days prior to the date hereof; and (2) on the Closing Date and any Option Closing Date (if such date is other than the Closing Date), the Underwriter shall have received a bring-down comfort letter from Ernst & Young LLP addressed to the Underwriter and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date) confirming, as a result of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which they specified financial information is given in the Disclosure Package and the Final Prospectus, as the case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Underwriter concurrently with the execution of this Agreement pursuant to this paragraph (h)(1) of this Section 6.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have determined been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6, (ii) any Material Adverse Effect or (iii) any action taken or law, statute, rule, regulation or order enacted, adopted or issued, or any issuance of an injunction or order, by any federal, state or foreign governmental or regulatory authority, the effect of which, in any case referred to in clause (i), (ii) or (iii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto).
(j) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(2) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and reasonably satisfactory evidence of such information actions shall have been provided to the Underwriter or counsel for the Underwriter.
(l) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from each executive officer and director of the Company set forth on Schedule IV hereto, addressed to the Underwriter, which shall be full force and effect on the Closing Date and any Option Closing Date, as the case may be.
(m) Prior to the Closing Date, the Company shall have furnished to the Underwriter such further information, certificates (both of officers and various secretaries of state evidencing good standing), opinions and documents as the Underwriter may reasonably request request. If any of an accountingthe conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, financial or statistical nature set forth if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Definitive Free Writing Prospectus Underwriter and counsel for the Prospectus Supplement under Underwriter, this Agreement and all obligations of the caption “The Initial Mortgage Loans” and elsewhere therein agrees Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. In connection with the accounting records purchase of any Option Shares on any settlement date, references to the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates “Closing Date” in this Section 6 shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”)instead refer to such settlement date. The Class M-1 Certificates documents required to be delivered by this Section 6 shall have been rated “AA+” be delivered at the office of Proskauer Rose LLP, counsel for the Underwriter, Eleven Times Square, New York, N.Y. 2012 at 10:00 a.m., EST, on June 18, 2012 on the Closing Date for review by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.the Underwriter or Proskauer Rose LLP.
Appears in 1 contract
Sources: Underwriting Agreement (Endeavour International Corp)
Conditions to the Obligations of the Underwriter. The obligations Underwriter hereby enter into this Purchase Contract in reliance upon the representations and warranties of the Underwriter Authority and the City contained herein and the representations and warranties of the Authority and the City to purchase be contained in the Certificates documents and instruments to be delivered on or prior to the Closing Date and upon the performance by the Authority and the City of their obligations both on and as of the date hereof and as of the Closing Date. Accordingly, the Underwriter’s obligations under this Purchase Contract to purchase, to accept delivery of and to pay for the Bonds shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor Authority and the City contained herein as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the Authority and the City made in any Officers’ certificates certificate or other document furnished pursuant to the provisions hereof, to the performance by the Depositor Authority and the City of its their obligations to be performed hereunder and under such documents and instruments at or prior to the Closing Date, and also shall be subject to the following additional conditions:
(a) The Underwriter shall receive, within seven (7) business days of the date hereof and at least in sufficient time to accompany any orders or confirmations that request payment from any customer, copies of the Official Statement (including all information previously permitted to have been omitted by Rule 15c2-12 and any amendments or supplements as have been approved by the Underwriter), in such quantity as the Underwriter shall have requested pursuant to Section 2 hereof;
(b) The representations and warranties of the Authority and the City contained herein shall be true and correct on the date hereof and on the Closing Date, as if made on and at the Closing Date;
(c) As of the Closing Date, the Financing Documents shall have been duly authorized, executed and delivered by the respective parties thereto, and the Official Statement shall have been duly authorized, executed and delivered by the Authority, all in substantially the forms heretofore submitted to the Underwriter, with only such changes as shall have been agreed to in writing by the Underwriter, and such Financing Documents shall be in full force and effect and shall not have been amended, modified or supplemented and the Official Statement shall not have been supplemented or amended, except in any such case as may have been agreed to by the Underwriter; and there shall be in full force and effect such resolution or resolutions of the Board of Directors of the Authority and the City Council of the City as, in the opinion of Bond Counsel, shall be necessary or appropriate in connection with the transactions contemplated hereby;
(d) Between the date hereof and the Closing Date, the market price or marketability, at the initial public offering prices set forth in the Official Statement, of the Bonds shall not have been materially adversely affected, in the reasonable judgment of the Underwriter (evidenced by a written notice to the Authority terminating the obligation of the Underwriter to accept delivery of and make any payment for the Bonds), by reason of any of the following:
(1) an amendment to the Constitution of the United States or the State of California shall have been passed or legislation shall have been introduced in or enacted by the Congress of the United States or the legislature of any state having jurisdiction of the subject matter or legislation pending in the Congress of the United States shall have been amended or legislation shall have been recommended to the Congress of the United States or to any state having jurisdiction of the subject matter or otherwise endorsed for passage (by press release, other form of notice or otherwise) by the President of the United States, the Treasury Department of the United States, the Internal Revenue Service or the Chairman or ranking minority member of the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of Representatives, or legislation shall have been proposed for consideration by either such Committee by any member thereof or presented as an option for consideration by either such Committee by the staff of such Committee or by the staff of the Joint Committee on Taxation of the Congress of the United States, or legislation shall have been favorably reported for passage to either House of the Congress of the United States by a Committee of such House to which such legislation has been referred for consideration, or a decision shall have been rendered by a court of the United States or of the State of California or the Tax Court of the United States, or a ruling shall have been made or a regulation or temporary regulation shall have been proposed or made or any other release or announcement shall have been made by the Treasury Department of the United States, the Internal Revenue Service or other federal or State of California authority, with respect to federal or State of California taxation upon revenues or other income of the general character to be derived by the Authority or upon interest received on obligations of the general character of the Series 2020-A Bonds which may have the purpose or effect, directly or indirectly, of affecting the tax status of the Authority, its property or income, its securities (including the Series 2020-A Bonds) or the interest thereon, or (with respect to the 2020-A Bonds and the 2020-B Bonds) any tax exemption granted or authorized by State of California legislation or materially and adversely affecting the market for the Series 2020-A Bonds or the market price generally of obligations of the general character of the Series 2020-A Bonds;
(2) legislation enacted, introduced in the Congress or recommended for passage by the President of the United States, or a decision rendered by a court established under Article III of the Constitution of the United States or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or official statement issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter shall have been made or issued to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Trust Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended;
(3) the outbreak or escalation in military hostilities or declaration by the United States of a national or international emergency or war or other calamity or crisis the effect of which on the financial markets is such as to make it impracticable or inadvisable to proceed with the offering or delivery of the Bonds as contemplated hereby or by the Official Statement;
(4) the declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange, or a major financial crisis or a material disruption in commercial banking or securities settlement or clearances services shall have occurred;
(5) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(6) an order, decree or injunction of any court of competent jurisdiction, or order, ruling, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, or the issuance, offering or sale of the Bonds, including any or all underlying obligations, as contemplated hereby or by the Official Statement, is or would be in violation of the federal securities laws as amended and then in effect;
(7) the withdrawal or downgrading of any rating of the Bonds or any other outstanding debt of the City’s Water System by Standard & Poor's Ratings Services or Fitch, Inc. or ratings on the Bonds shall have been placed on “Negative Outlook” by Standard & Poor's Ratings Services or Fitch, Inc.; or
(8) an event shall occur or be discovered which makes untrue or incorrect in any material respect, as of the time of such event, any statement or information contained in the Official Statement or which is not reflected in the Official Statement but should be reflected therein in order to make the statements contained therein not misleading in any material respect and requires an amendment of or supplement to the Official Statement.
(e) At or prior to the Closing Date, the Underwriter shall have received the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) The Official Statement and each supplement or amendment, if any, thereto, executed by the Authority and approved by the City.
(2) Copies of each of the Financing Documents, each duly executed and delivered by the respective parties thereto.
(3) The unqualified approving opinion of Bond Counsel, dated the Closing Date and addressed to the Authority, in substantially the form attached to the Official Statement as Appendix F thereto.
(4) The supplemental opinion of Bond Counsel dated the Closing Date and addressed to the Underwriter in substantially the form attached hereto as Exhibit A.
(5) The opinion of ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP as disclosure counsel dated the Closing Date and addressed to the City, the Authority and the Underwriter in substantially the form attached hereto as Exhibit B.
(6) The opinion of the City Attorney of the City, as counsel for the Authority, dated the Closing Date and addressed to the Underwriter, is substantially the form attached hereto as Exhibit C.
(7) The opinion of the City Attorney of the City, dated the Closing Date and addressed to the Underwriter, in substantially the form attached hereto as Exhibit D.
(8) The opinion of counsel to the Trustee, dated the Closing Date and addressed to the Authority, the City and the Underwriter, to the effect that (i) the Trustee has duly authorized, executed and delivered the Trust Indenture and the Continuing Disclosure Agreement and duly authenticated and delivered the Bonds on the Closing Date; and (ii) the Trust Indenture and the Continuing Disclosure Agreement constitute the legally valid and binding obligations of the Trustee, enforceable against the Trustee in accordance with their terms, except that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws in effect from time to time affecting the rights of creditors generally and except to the extent that the enforceability thereof may be limited by the application of general principles of equity.
(9) The opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall ▇▇, a Professional Corporation (“Underwriter’s Counsel”), dated the Closing Date and addressed to the Underwriter, to the effect that (i) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Trust Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended, (ii) without passing upon and without assuming any responsibility for the accuracy, completeness or fairness of any of the statements contained in the Preliminary Official Statement or the Official Statement and making no representation that they have furnished independently verified the accuracy, completeness or fairness of any such statements; in their capacity as counsel to the Underwriter opinionsduring the course of the preparation of the Preliminary Official Statement and the Official Statement, they participated in conferences with representatives of the Authority, the City, the City Attorney, as counsel to the Authority and the City, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, as bond counsel and disclosure counsel, Public Financial Management, Inc. as municipal advisor and the Underwriter, during which the contents of the Preliminary Official Statement and the Official Statement and related matters were discussed and based on their participation in such conferences, and in reliance thereon and on the certificates, opinions and other documents they have reviewed, no information has come to the attention of the lawyers of such firm rendering professional legal services in connection with such representation that has caused them to believe that the Preliminary Official Statement as of the date of execution of the Purchase Contract, or the Official Statement as of its date and as of the Closing Date (except for any financial statements or other financial or statistical data or forecasts and the information concerning DTC and the book- entry system included therein, and the Appendices thereto, and, with respect to the Preliminary Official Statement, information permitted to be omitted therefrom pursuant to Rule 15c2-12, as to all of which they express no opinion or view) contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iii) assuming the due authorization, execution and delivery of the Continuing Disclosure Agreement by the parties thereto and the enforceability thereof, the Continuing Disclosure Agreement satisfies (b)(5)(i) of Rule 15c2-12 of the Securities Exchange Act.
(10) A certificate or certificates, dated the Closing Date, substantially signed by a duly authorized official of the Authority satisfactory to the effect set forth Underwriter, in Exhibit A.
(b) The Depositor shall have furnished form and substance satisfactory to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing DateUnderwriter, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The the representations and warranties of the Depositor Authority contained in this Agreement Purchase Contract and the other Authority Documents are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
; (ii) No stop order suspending the effectiveness of the Registration Statement has been issued and there is no proceedings for that purpose have been instituted action, suit, proceeding, inquiry or investigation pending or, to his knowledgethe best knowledge of such official after reasonable investigation, threatened
(a) to restrain or enjoin the execution, sale or delivery of any of the Bonds, (b) in any way affecting the validity of the Bonds or the Authority Documents or (c) in any way contesting the existence or powers of the Authority; and
and (iii) Nothing no event affecting the Authority has come to his attention that would lead him to believe that occurred since the Registration Statement, date of the Official Statement which either makes untrue or incorrect in any material respect as of the Closing Date, contains Date any untrue statement of a material fact or omits information contained in the Official Statement relating to state any material fact required to the Authority or is not reflected in the Official Statement but should be stated reflected therein or necessary in order to make the statements and information therein relating to the Authority not misleadingmisleading in any material respect.
(11) A certificate or certificates, or that the Prospectus, as of dated the Closing Date, contains any untrue statement of signed by a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light duly authorized official of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished City satisfactory to the Underwriter a letter, dated as of the Closing DateUnderwriter, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures (i) the representations and warranties of the City contained in this Purchase Contract and the other City Documents are true and correct in all material respects on and as a result of which they have determined that the Closing Date with the same effect as if made on the Closing Date; (ii) there is no action, suit, proceeding, inquiry or investigation pending or, to the best knowledge of such information official, threatened (a) to restrain or enjoin the payment of the 2020 Purchase Payments (as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth defined in the Definitive Free Writing Prospectus Official Statement) or the execution and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records delivery of the Depositor andCity Documents, where applicable, (b) in any way contesting or affecting the Mortgage Loan files validity of the DepositorCity Documents or (c) in any way contesting the existence or powers of the City, excluding any questions nor to the best knowledge of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4such official after reasonable investigation, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.is t
Appears in 1 contract
Sources: Purchase Contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor Community Facilities District contained herein herein, as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the Community Facilities District made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor Community Facilities District of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated At the Closing Date, substantially the Community Facilities District Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the effect set forth Underwriter, and there shall have been taken in Exhibit A.connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of Bond Counsel, shall be necessary and appropriate;
(b) The Depositor shall have furnished to information contained in the Underwriter a certificate of the DepositorOfficial Statement will, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect and as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued date of any supplement or amendment thereto pursuant to Section 3(i) hereof, be true, correct and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statementcomplete in all material respects and will not, as of the Closing DateDate or as of the date of any supplement or amendment thereto pursuant to Section 3(i) hereof, contains contain any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(c) Deloitte & Touche LLP will Between the date hereof and the Closing Date, the market price or marketability of the Bonds at the initial offering prices set forth in the Official Statement or the ability of the Underwriter to enforce contracts for the sale of the Bonds, shall not have furnished been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the Community Facilities District terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds) by reason of any of the following:
(1) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration or a letterdecision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department or the Internal Revenue Service of the United States of America, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon the interest that would be received by the holders of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
(2) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under, or from the other requirements of, the Securities Act of 1933, as amended, or that the Resolution is not exempt from qualification under, or from the other requirements of, the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and then in effect;
(3) any amendment to the federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Community Facilities District, its property, income, securities (or interest thereon), the validity or enforceability of the Special Tax or the ability of the Community Facilities District to construct or acquire the improvements as contemplated by the Community Facilities District Documents or the Official Statement or the right of any owner of the property within the Community Facilities District to develop such property in the manner described in the Official Statement;
(4) any event occurring, or information becoming known, which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or results in the Official Statement containing any untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; or
(5) the declaration of war or the escalation of, or engagement in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to the effective operation of the government of, or the financial community in, the United States; or
(6) the declaration of a general banking moratorium by federal, State of New York or State of California authorities, or the general suspension of trading on any national securities exchange or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on the New York Stock Exchange or other national securities exchange, whether by virtue of determination by that exchange or by order of the Securities and Exchange Commission (the “SEC”) or any other governmental authority having jurisdiction; or
(7) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter; or
(8) the entry of an order by a court of competent jurisdiction which order, in the reasonable opinion of the Underwriter, materially and adversely affects proposed development of property within the Community Facilities District; or
(9) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred; or
(10) there shall have been any material adverse change in the affairs of the Community Facilities District or County that in the Underwriter’s reasonable judgment will materially adversely affect the market for the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or
(11) there shall be established any new restriction on transactions in securities materially affecting the free market for securities (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States, or by Executive Order; or
(12) a stop order, release, regulation, or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made to the effect that the issuance, offering, or sale of the Bonds, including all the underlying obligations as contemplated hereby or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act, the Exchange Act, and the Trust Indenture Act of 1939, as amended; or
(13) the commencement of any action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body described in Section 3(k).
(d) On the Closing Date, the Underwriter shall have received counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter:
(1) The Community Facilities District Documents, together with a certificate dated as of the Closing DateDate of the Clerk of the Board to the effect that each such document is a true, correct and complete copy of the one duly approved by the Board;
(2) The Official Statement, duly executed by the Community Facilities District;
(3) The opinion of Bond Counsel, dated the Closing Date and addressed to the Community Facilities District, in substantially the form attached to the Preliminary Official Statement as Appendix C, and substance satisfactory a reliance letter from such firm, dated the Closing Date and addressed to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as approving opinion addressed to the Community Facilities District may be relied upon by the Underwriter may reasonably request to the same extent as if such opinion were addressed to them;
(4) The supplemental opinion of an accountingBond Counsel, financial or statistical nature set forth dated the Closing Date and addressed to the Underwriter, to the effect that (i) this Bond Purchase Agreement, and the Community Facilities District Continuing Disclosure Certificate have been duly authorized, executed and delivered by the Community Facilities District, and, in the Definitive Free Writing Prospectus case of the Bond Purchase Agreement, assuming such agreement constitutes a valid and binding obligation of the respective other parties thereto, constitute the legally valid and binding obligations of the Community Facilities District enforceable in accordance with their terms, except as enforcement may be limited by bankruptcy, moratorium, insolvency or other laws affecting creditor’s rights or remedies and is subject to general principles of equity and to the exercise of judicial discretion in appropriate cases; (ii) the Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended, and the Prospectus Supplement Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended; and (iii) the statements contained in the Official Statement under the caption captions “The Initial Mortgage LoansTHE BONDS,” “SOURCES OF PAYMENT FOR THE BONDS,” “TAX MATTERS,” and elsewhere therein agrees with the accounting records in Appendices C, E, F and G, insofar as such statements expressly summarize certain provisions of the Depositor and, where applicableBonds, the Mortgage Loan files Indenture, the other agreements and the opinion of such firm concerning the Depositorexclusion from gross income for federal income tax purposes and exemption from State of California personal income taxes of interest on the Bonds, excluding any questions of legal interpretation.are accurate in all material respects;
(d5) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division letter of The ▇▇▇▇▇▇-▇▇▇ ▇▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇▇ Investors Service& ▇▇▇▇▇, Inc. a Professional Corporation, dated the Closing Date and addressed to the Community Facilities District and to the Underwriter, to the effect that, without having undertaken to determine independently the accuracy or completeness of the statements contained in the Official Statement, but on the basis of their participation in conferences with representatives of the Community Facilities District, the Special Tax Consultant and others, and their examination of certain documents, nothing has come to their attention which has led them to believe that the Official Statement, as of its date contained, or as of the Closing Date contains, any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (“Moody’s”except that no opinion or belief need be expressed as to any financial statements or other financial, statistical or engineering data or forecasts, numbers, charts, estimates, projections, assumptions, or expressions of opinion, any information about valuation, appraisals, absorption, archeological or environmental matters, or any information about The Depository Trust Company, the book-entry-only system or CUSIP numbers). The Class M-1 Certificates shall have ;
(6) A certificate, dated the Closing Date and signed by an authorized representative of the Community Facilities District, ratifying the use and distribution by the Underwriter of the Preliminary Official Statement and the Official Statement in connection with the offering and sale of the Bonds and certifying that (i) the representations and warranties of the Community Facilities District contained in Section 3 hereof are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date; (ii) to the best of his or her knowledge, no event has occurred since the date of the Official Statement affecting the matters contained therein which should be disclosed in the Official Statement for the purposes for which it is to be used in order to make the statements and information contained in the Official Statement not misleading in any material respect, and the Bonds and the Community Facilities District Documents conform as to form and tenor to the descriptions thereof contained in the Official Statement; and (iii) the Community Facilities District has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Formation Documents, the Community Facilities District Documents and the Official Statement at or prior to the Closing Date;
(7) An opinion, dated the Closing Date and addressed to the Underwriter, of the office of County Counsel, to the effect that (i) the County was duly organized and is validly existing as a division of the State under the Constitution and laws of the State of California,
(ii) the Board adopted the resolutions and ordinances forming the Community Facilities District, confirming the Special Tax, approving the Community Facilities District Documents and authorizing the sale and issuance of the Bonds at meetings of the Board which were held pursuant to law, (iii) to its current actual knowledge, there are no actions, suits, proceedings, inquiries, or investigations, at law or in equity, before or by any California court, governmental agency, public board, or body, pending (notice of which has been rated “AA+” by S&Pserved on the County) or, “AA+” by Fitchthreatened in writing against the County or the Community Facilities District, “AA (high)” by DBRS for which the County or the Community Facilities District has been served, to restrain or enjoin the issuance of the Bonds, the collection or application of the Special Tax, or the payment of principal of and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&Pinterest on the Bonds, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.or in any way contesting the validity of the Bonds or the Community Facilities District Documents or this Bond Purchase Agreement;
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Offered Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof 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 Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP The Underwriter shall have furnished received from PricewaterhouseCoopers LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter opinionsand counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Date, substantially updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the effect set forth in Exhibit A.Underwriter and counsel for the Underwriter.
(b) The Depositor 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 Offered Certificates shall have furnished been duly taken and made. At and prior to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to no stop order suspending the effect that the signer effectiveness of such certificate has carefully examined the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the Prospectus knowledge of the Company or the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and that:
delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or the Servicer which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Offered Certificates; (ii) any downgrading in the rating of the Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of the Servicer (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, North Carolina or New York 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 Underwriter, 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 Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of an executive officer of the Company in which such officer shall state that, to the best of such officer's knowledge after reasonable inspection, (i) the representations and warranties of the Depositor Company contained in this Agreement the Basic Documents are true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, Date and (ii) the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(iie) No stop order suspending the effectiveness The Underwriter shall have received a certificate of the Registration Statement has been issued and no proceedings for that purpose have been instituted oran executive officer of BANA, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, dated as of the Closing Date, to the effect that, to th▇ ▇▇st of such officer's knowledge, (i) the representations and warranties contained in the Mortgage Loan Purchase Agreement are true and correct with the same force and effect as though made on and as of the Closing Date and (ii) such officer has reviewed the Final Prospectus as amended or supplemented to the Closing Date and nothing has come to such officer's attention that would lead such officer to believe that the Final Prospectus as amended or supplemented, insofar as it relates to BANA or the Mortgage Loans originated or acquired by BANA, contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading.
(f) The Underwriter shall have received an opinion of Cadwalader, or Wickersham & Taft LLP, special counsel to the Com▇▇▇▇, ▇▇▇▇d the Clos▇▇▇ D▇▇▇, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(h) The Underwriter shall have received from Cadwalader, Wickersham & Taft LLP, special counsel for the Underwriter, a letter ▇▇ted ▇▇▇ Closing Date with respect to the Final Prospectus, substantially to the effect that nothing has come to such counsel's attention in the course of its review of the Final Prospectus which causes it to believe that the Final Prospectus, as of the date of the Prospectus Supplement or the Closing Date, contains contained any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(ci) Deloitte & Touche LLP will The Underwriter shall have furnished received an opinion of reasonably acceptable counsel to the Underwriter a letterTrustee, dated as of the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(j) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Certificates and the Pooling Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) 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, in the opinion of counsel to the Underwriter, 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 effect authorization, form and validity of this Agreement, the Pooling Agreement, the Mortgage Loan Purchase Agreement, the Certificates, 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 have performed certain specified procedures as a result may reasonably request to enable them to pass upon such matters. The Company will provide or cause to be provided to the Underwriter such conformed copies of which they have determined that such information opinions, certificates, letters and documents as the Underwriter may reasonably request of an accountingrequest. All opinions, financial letters, evidence and certificates mentioned above or statistical nature set forth elsewhere in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees this Agreement shall be deemed to be in compliance with the accounting records of provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding Underwriter. If any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates condition specified in this Section 6 shall not have been rated “AAA” fulfilled when and as required to be fulfilled, this Agreement may be terminated by Standard & Poor’sthe Underwriter by notice to the Company at any time at or prior to the Closing Date, a division and such termination shall be without liability of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.any party to any other party except as provided in Section 7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Mortgage 2007-4 Trust)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3, hereof, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ London LLP, counsel for the Company, to have furnished to the Underwriter its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, in a form reasonably acceptable to the Underwriter.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, to have furnished to the Underwriter its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Underwriter, in a form reasonably acceptable to the Underwriter.
(d) The Underwriter shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to (UK) LLP, counsel for the Underwriter Underwriter, such opinion or opinions, dated the Closing DateDate and any settlement date, substantially as applicable, and addressed to the effect set forth in Exhibit A.Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(be) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice President Chief Executive Officer and the principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing DateDate and any settlement date, as applicable, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has come been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused ▇▇▇▇▇▇ to his attention that would lead him have furnished to believe that the Registration StatementUnderwriter, at the Execution Time and at the Closing Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date, contains Date and any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectussettlement date, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Dateapplicable, in form and substance satisfactory to the Underwriter, .
(g) Subsequent to the effect that they have performed certain specified procedures Execution Time or, if earlier, the dates as a result of which they information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have determined that been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date and any settlement date, as applicable, the Company shall have furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request request.
(i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of an accountingthe underwriting or other arrangements of the transactions contemplated hereby.
(j) The Securities shall be duly listed subject to notice of issuance on the Nasdaq Capital Market, financial or statistical nature set forth in satisfactory evidence of which shall have been provided to the Definitive Free Writing Prospectus Underwriter.
(k) On the Effective Date, the Company shall have delivered to the Underwriter executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Subscription Agreement, the Founder’s Purchase Agreement, the Forward Purchase Agreements, the Warrant Subscription Agreement, the Insider Letters, the Registration and Shareholder Rights Agreement and the Prospectus Supplement under Administrative Services Agreement.
(l) At least one Business Day prior to the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor andClosing Date or a settlement date, where as applicable, the Mortgage Loan files Sponsor shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the Depositornumber of Units issued in the Offering as of such Closing Date or such settlement date, excluding any questions as applicable, and the public offering price per Unit as set forth on the cover of legal interpretationthe Prospectus.
(dm) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates No order preventing or suspending the sale of the Units in any jurisdiction designated by the Underwriter pursuant to Section 5(hh) hereof shall have been rated “AAA” issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by Standard & Poor’sthe Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 and, a division if applicable, the last sentence of The Section 3 shall be delivered at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇-▇ & ▇▇▇▇ Companies(UK) LLP, Inc. (“S&P”)counsel for the Underwriter, “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by at ▇▇ ▇▇▇▇ ▇▇▇▇▇’▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ Investors Service▇▇▇▇▇▇▇, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P▇▇▇ ▇▇▇, “AA+” by FitchAttention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&Punless otherwise indicated herein, “AA+” by Fitchon the Closing Date or the applicable settlement date, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.as applicable.
Appears in 1 contract
Sources: Underwriting Agreement (Target Global Acquisition I Corp.)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter’s obligation to purchase the Certificates in the respective amounts set forth opposite their names on Schedule I attached hereto shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP 6.1 No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for that purpose shall be pending or, to the knowledge of the Company, threatened by the Commission or by any authority administering any state securities or Blue Sky law; and the Prospectus Supplement shall have furnished been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Company, the Seller or any of their respective affiliates the effect of which, in any case, is, in that Underwriter’s reasonable judgment, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Certificates as contemplated by the Registration Statement and the Prospectus. All actions required to be taken and all filings required to be made by the Issuer under the Act and the Exchange Act prior to the sale of the Certificates shall have been duly taken or made.
6.3 The Company shall have delivered to the Underwriter opinionsa certificate, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, an Executive Vice President, a Senior Vice President or any a Vice President, dated President of the Closing Date, Company to the effect that the signer of such certificate has carefully examined this Agreement, the Registration Statement Prospectus, the Pooling and Servicing Agreement, the Prospectus Servicing Agreements, the Mortgage Loan Purchase Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(ia) The the representations and warranties of the Depositor Company in this Agreement and in the Pooling and Servicing Agreement are true and correct in all material respects on and as of respects;
(b) the Closing Date with the same effect as if made on the Closing DateCompany has, and the Depositor has in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(iic) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated;
(d) subsequent to the respective dates as of which information is given in the Prospectus, and except as set forth or contemplated in the Prospectus, there has not been any material adverse change in the general affairs, business, key personnel, capitalization, financial condition or results of operations of the Company or the Seller;
(e) except as otherwise stated in the Prospectus, there are no actions, suits or proceedings pending before any court or governmental agency, authority or body or, to his their knowledge, threatened, against the Company or the Seller that could reasonably have a material adverse affect on (i) the Company or the Seller or (ii) the transactions contemplated by this Agreement; and
(iiif) Nothing has come to his attention that would lead him to believe attached thereto are true and correct copies of a letter or letters from one or more nationally recognized statistical rating agencies confirming that the Registration StatementCertificates have been rated in one of the four highest grades by each of such agencies rating that class of Certificates and that such rating has not been lowered since the date of such letter.
6.4 The Company shall have delivered to the Underwriter a certificate, as of dated the Closing Date, contains any untrue statement of the President, an Executive Vice President, a material fact Managing Director or omits a Director of the Company to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or effect that the Prospectussigner of such certificate has examined the Servicing Agreements, as the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreement and this Agreement and that, to his or her knowledge after reasonable investigation, the representations and warranties of the Company contained in this Agreement are true and correct in all material respects.
6.5 The Seller shall have delivered to the Underwriter a certificate, dated the Closing Date, contains any untrue statement of the President, a material fact Managing Director or omits a Director of the Seller to state a material fact required the effect that the signer of such certificate has examined the Mortgage Loan Purchase Agreement and that, to be stated therein his or necessary to make her knowledge after reasonable investigation, the statements therein, representations and warranties of the Seller contained in the light of the circumstances under which they were made, not misleadingMortgage Loan Purchase Agreement are true and correct in all material respects.
(c) Deloitte & Touche LLP will 6.6 You shall have furnished received the opinion and letter of SNR ▇▇▇▇▇▇ US LLP, counsel for the Company and the Seller, dated the Closing Date and substantially to the Underwriter a lettereffect set forth in Exhibit A and Exhibit B.
6.7 You shall have received from counsel for the Underwriter, an opinion dated as of the Closing Date, Date in form and substance satisfactory to the Underwriter.
(i) You shall have received from Deloitte & Touche llp, certified public accountants, a letter addressed to the Underwriter and dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter’s counsel, to the effect that they have performed certain specified procedures procedures, all of which have been agreed to by the Underwriter, as a result of which they have determined that such certain information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption captions “The Initial Mortgage LoansPool” and elsewhere therein “Description of the Certificates” agrees with the accounting records of the Depositor and, where applicable, Company and the Mortgage Loan files of the Depositor, Seller excluding any questions of legal interpretation.
(dii) At the Closing Date, Deloitte & Touche llp and/or any other firm of certified independent public accountants acceptable to you shall have furnished to you a letter, addressed to you, and in form and substance satisfactory to you in all respects, relating to the extent such information is not covered in the letter or letters provided pursuant to Section 6.8(i), to the characteristics of the mortgage loans, as presented in the Prospectus Supplement.
6.9 The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 A Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRSStandard & Poor’s”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates .
6.10 You shall have been rated “AA+” by S&Preceived the opinion of ___________________, “AA+” by Fitchcounsel to the Trustee, “AA (high)” by DBRS dated the Closing Date, substantially to the effect set forth in Exhibit C.
6.11 You shall have received from SNR ▇▇▇▇▇▇ US LLP, counsel to the Company, reliance letters with respect to any opinions delivered to Standard & Poor’s and “Aa1” by Moody’s. The Class M-2 Certificates Company will furnish you with conformed copies of the above opinions, certificates, letters and documents as you reasonably request. If any of the conditions specified in this Article 6 shall not have been rated “AA” fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by S&Pthe Underwriter. Notice of such cancellation shall be given to the Company in writing, “AA+” or by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.telephone or telegraph confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (Shellpoint Mortgage Acceptance LLC)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter's obligation to purchase the Certificates Notes shall be subject to the accuracy in all respects following conditions:
6.1 No stop order suspending the effectiveness of the representations Registration Statement shall be in effect, and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Dateno proceedings for that purpose shall be pending or, to the accuracy knowledge of the statements Company, threatened by the Commission; and the Prospectus Supplement shall have been filed or transmitted for filing by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Since [________] [__], 20[__] there shall have been no material adverse change (not in the ordinary course of business) in the condition of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:Company or GMFI.
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP 6.3 The Company shall have furnished delivered to the Underwriter opinionsyou a certificate, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of an Authorized Officer of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, Company to the effect that the signer of such certificate has carefully examined this Agreement, the Registration Statement Approved Offering Materials, the Prospectus, the Trust Agreement, the Servicing Agreement, the Indenture and the Prospectus various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(ia) The the representations and warranties of the Depositor Company in this Agreement and in the Indenture are true and correct in all material respects on and as of respects; and
(b) the Closing Date with the same effect as if made on the Closing DateCompany has, and the Depositor has in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose 6.4 GMFI shall have been instituted ordelivered to you a certificate, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of dated the Closing Date, contains any untrue statement of a material fact or omits an Authorized Officer of GMFI to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or effect that the Prospectussigner of such certificate has examined the Trust Agreement, as the Servicing Agreement, the Indenture and this Agreement and that, to the best of his or her knowledge after reasonable investigation, the representations and warranties of GMFI contained in the Servicing Agreement and in this Agreement are true and correct in all material respects.
6.5 You shall have received the opinions of Orrick, Herrington & Sutcliffe LLP, special counsel for the Company and GMFI, dated the Closing Date▇▇▇▇ and ▇▇ ▇▇▇▇ ▇nd ▇▇▇▇▇▇▇▇e reasonably satisfactory to you, contains any untrue statement and the opinion of a material fact or omits to state a material fact required to be stated therein or necessary to make in-house counsel for the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letterCompany and GMFI, dated as of the Closing Date, Date and in form and substance reasonably satisfactory to you.
6.6 The Underwriter shall have received from [________], certified public accountants, (a) a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they have performed certain specified procedures procedures, all of which have been agreed to by the Underwriter, as a result of which they have determined that such certain information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption captions “The Initial Description of the Mortgage LoansPool”, “Description of the Agreements”, “Description of the Securities” and elsewhere therein “Certain Yield and Prepayment Considerations” agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, Company and GMFI excluding any questions of legal interpretationinterpretation and (b) the letter prepared pursuant to Section 4.4(e).
(d) 6.7 The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates A Notes shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), [_______] and “AAA” by Fitch Ratings[_________].
6.8 You shall have received the opinion of [____________], Inc. (“Fitch”)counsel to the Trustee, “AAA” by Dominion Bond Rating Service (“DBRS”) dated the Closing Date and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”)in form and substance reasonably satisfactory to you. The Class M-1 Certificates shall have been rated “AA+” by S&PCompany will furnish you with conformed copies of the above opinions, “AA+” by Fitchcertificates, “AA (high)” by DBRS letters and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.documents as you reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Greenpoint Mortgage Securities LLC)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor City contained herein as of the date hereof and the Closing Dateherein, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the City and the Community Facilities District made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor City and the Community Facilities District of its their obligations to be performed hereunder and at or prior to the Closing Date and, to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated A. At the Closing Date, substantially the Community Facilities District Resolutions, the Formation Documents, and the City Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the effect set forth in Exhibit A.
(b) The Depositor Underwriter, and there shall have furnished to been taken in connection therewith, with the Underwriter a certificate issuance of the DepositorBonds, signed and with the transactions contemplated thereby, and by this Purchase Agreement, all such actions as, in the Presidentopinion of Bond Counsel, Senior Vice President or any Vice President, dated shall be necessary and appropriate.
B. At the Closing Date, except as was described in the Preliminary Official Statement, the City shall not be, in any respect material to the effect that Bonds, the signer City Documents or the transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the State, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound, and the performance by the City of its obligations under the Bonds, the City Documents, the Community Facilities District Resolutions, this Purchase Agreement and any other instruments contemplated by any of such certificate has carefully examined documents, and compliance with the Registration Statement and the Prospectus and that:
(i) The representations and warranties provisions of each thereof, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the Depositor State, the United States of America or of any department, division, agency or instrumentality of either thereof or under any applicable court or administrative decree or order or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound, in this Agreement are any manner which would materially and adversely affect the performance by the City of its obligations under the City Documents, the Bonds or the Community Facilities District Resolutions.
C. The information contained in the Official Statement is, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant hereto, true and correct in all material respects on and does not, as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Datedate of any supplement or amendment thereto, contains contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading.
D. The Underwriter shall have the right to cancel its obligation to purchase the Bonds and to terminate this Purchase Agreement by written notice to the City if, between the date of this Purchase Agreement and the Closing Date, in the Underwriter’s sole and reasonable judgment any of the following events shall occur (each a “Termination Event”):
1. Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth on the cover page of the Official Statement, of the Bonds, or the ability of the Underwriter to enforce contracts for the sale of the Bonds, shall have been materially adversely affected, in the reasonable judgment of the Underwriter (evidenced by a written notice to the City terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
a. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or the legislature of the State or recommended to the Congress by the President of the United States of America or a member of the President’s Cabinet, the Department of the Treasury, the Internal Revenue Service or any member of Congress or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration, or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department of the United States of America, the Internal Revenue Service or other federal or State authority with appropriate jurisdiction, with the purpose or effect, directly or indirectly, of imposing State income taxation upon such interest as would be received by any owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
b. Legislation introduced in or enacted (or resolution passed) by the Congress, or shall have been favorably reported out of committee or be pending in committee, or shall have been recommended to the Congress for passage by the President of the United States of America or a member of the President’s Cabinet, or an order, decree, injunction or decision issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release, statement or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds, the Resolution or the City Documents, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended, or that the ProspectusIndenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the Closing Dategeneral character of the Bonds, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws as amended and then in effect;
c. A general suspension of trading in securities on the New York Stock Exchange or other major exchange shall be in force, or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on any such exchange, whether by virtue of determination by that exchange or by order of the Securities and Exchange Commission or any other governmental authority having jurisdiction;
d. There shall have occurred, (1) any material outbreak or escalation of hostilities or the declaration by the United States of America of a national emergency or war, (2) any other calamity or crisis in the financial markets of the United States of America or elsewhere, or (3) the sovereign debt rating of the United States of America is downgraded by any major credit rating agency or a payment default occurs on United States Treasury obligations, ;
e. Except as disclosed in or contemplated by the Official Statement, any material adverse change in the affairs of the City or the Community Facilities District shall have occurred;
2. The introduction, proposal or enactment of any amendment to the federal or California Constitution or any action by any federal or State court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the City or the Community Facilities District, their property, income, securities (or interest thereon), the validity or enforceability of Special Taxes;
3. Any event occurring or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue or incorrect in any material respect any statement or information contained in the Preliminary Official Statement or in the Official Statement or has the effect that the Preliminary Official Statement or the Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
4. A general banking moratorium shall have been declared by federal, State of New York or State of California officials authorized to do so or a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
5. Any new restriction on transactions in securities materially affecting the market for securities (cincluding the imposition of any limitation in interest rates) Deloitte & Touche LLP will have furnished or the extension of credit by, or a charge to the Underwriter a letternet capital requirements of, dated as underwriters shall have been established by the New York Stock Exchange, the Comptroller of the Closing DateCurrency, in form the Securities and substance satisfactory to Exchange Commission or any other federal or State agency or the UnderwriterCongress of the United States of America, or by Executive Order;
6. A decision by a court of the United States of America shall be rendered, or a stop order, release, regulation or no-action letter by or on behalf of the Securities and Exchange Commission or any other governmental agency having jurisdiction of the subject matter shall have been issued or made, to the effect that they the issuance, offering or sale of the Bonds as contemplated by this Purchase Agreement or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds is or would be in violation of any provision of the federal securities laws at the Closing Date, including the Securities Act of 1933, the Securities Exchange Act of 1934 and the Trust Indenture Act of 1939;
7. Any proceeding shall have performed certain specified procedures as been commenced or be threatened in writing by the Securities and Exchange Commission against the City or the Community Facilities District.
8. The commencement of an Action described in Section 2(H). Upon the occurrence of a result Termination Event and the termination of which they have determined that such information as this Purchase Agreement by the Underwriter, all obligations of the City, the Community Facilities District, and the Underwriter may reasonably request of an accountingunder this Agreement shall terminate, financial or statistical nature without further liability, except that the City and the Underwriter shall pay their respective expenses as set forth in Section 5 below.
E. At or prior to the Definitive Free Writing Prospectus and Closing Date, the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records Underwriter shall have received a counterpart original or certified copy of the Depositor andfollowing documents, where applicable, in each case satisfactory in form and substance to the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.Underwriter:
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter hereunder, as to purchase the Certificates Securities to be delivered at each Delivery Date, shall be subject subject, in its discretion, to the accuracy in condition that all respects of the representations and warranties on the part and other statements of the Depositor contained herein Company are, at and as of the date hereof and the Closing each Delivery Date, to true and correct and the accuracy of condition that the statements of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company shall have performed all of its obligations hereunder theretofor to be performed, and to the following additional conditions:
(a) The Registration Statement is effective; if the filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) On each Delivery Date, LeClairRyan, A Professional Corporation, counsel for the Underwriter, shall have furnished to you an opinion or opinions, dated such dates, with respect to the issuance and sale of the Securities on each such Delivery Date, the Registration Statement, the Time of Sale Prospectus, the Prospectus, and other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(c) On each Delivery Date, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP , counsel for the Company, shall have furnished to the Underwriter opinionsyou their written opinion, dated the Closing Datesuch dates, substantially in form and substance satisfactory to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Dateyou, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of Company, the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing DateBank, and the Depositor has complied Bank Subsidiaries have been duly incorporated or organized and are validly existing as corporations or limited liability companies, as applicable, in good standing under the laws of their respective jurisdictions of incorporation or organization, with all corporate power and authority to own or lease their respective properties and conduct their respective businesses as described in the agreements Time of Sale Prospectus and satisfied all the conditions on its part Prospectus; and each of the Company, the Bank and the Bank Subsidiaries is duly qualified to be performed do business and are in good standing in each jurisdiction in which it owns or satisfied at leases property or prior conducts business so as to require such qualification except where the Closing Datefailure to so qualify would not result in a Material Adverse Effect;
(ii) No The Company has an authorized capitalization as set forth under the captions “Description of the Series B Preferred Stock” and “Description of Other Capital Stock” in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and nonassessable and conform to the description contained in the Prospectus; there are no preemptive or similar rights to subscribe for or to purchase any securities of the Company under the Articles of Incorporation of the Company or under Virginia law; except as described in the Prospectus, to such counsel’s knowledge, there are no warrants or options to purchase any securities of the Company which have been granted by the Company; to such counsel’s knowledge, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any rights for or relating to the registration of any securities of the Company; and the form of the certificates evidencing the Securities complies with all formal requirements of Virginia law;
(iii) The Registration Statement has been declared effective under the Securities Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings proceeding for that purpose has been instituted or threatened under the Securities Act;
(iv) The Securities have been instituted orduly authorized and, when issued and delivered against payment therefor as provided herein, will be validly issued and fully paid and nonassessable and conform to the description of the Securities contained in the Prospectus, as amended or supplemented;
(v) All outstanding shares of capital stock of the Bank and all of the membership interests of the Bank Subsidiaries owned by the Bank are owned, directly or indirectly, by the Company free and clear of any perfected security interests, claims, liens or encumbrances;
(vi) To such counsel’s knowledge, there are no legal or governmental proceedings pending to which the Company, the Bank or any of the Bank Subsidiaries is a party or of which any property or assets of the Company, the Bank or any of the Bank Subsidiaries is subject which, if determined adversely to the Company, the Bank or any of the Bank Subsidiaries, would individually or in the aggregate, have a Material Adverse Effect; and, to his such counsel’s knowledge, threatenedno such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vii) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or other similar laws affecting the rights of creditors now or hereafter in effect, and to equitable principles that may limit the right to specific enforcement of remedies, and except insofar as the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited by federal and state securities laws, and further subject to 12 U.S.C. 1818 (b)(6)(D) and similar bank regulatory powers and to the application of principles of public policy);
(viii) The issue and sale of the Securities and the performance of this Agreement by the Company and the consummation of the other transactions contemplated by this Agreement will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company, the Bank or any of the Bank Subsidiaries pursuant to, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company, the Bank or any of the Bank Subsidiaries is a party or by which the Company, the Bank or any of the Bank Subsidiaries is bound or to which any of the property or assets of the Company, the Bank or any of the Bank Subsidiaries is subject, nor will such action result in any violation of the provisions of the articles of incorporation, bylaws, articles of organization or operating agreement of the Company, the Bank or any of the Bank Subsidiaries, as applicable, or of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, the Bank or any of the Bank Subsidiaries or any of their respective properties;
(ix) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Securities by the Company or the consummation by the Company of the other transactions contemplated by this Agreement, except such as have been obtained under the Securities Act, such as may be required under state securities or Blue Sky laws, and such as may be required under the rules of FINRA in connection with the purchase and distribution of the Securities by the Underwriter;
(x) The Registration Statement, the Time of Sale Prospectus and the Prospectus and any further amendments and supplements thereto made by the Company prior to such Delivery Date (other than the financial statements and related schedules and other financial and statistical information included therein and information furnished for use therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations thereunder; and
(iiixi) Nothing The Company has filed an application for the listing of, and all required supporting documents with respect to, the Securities with the Nasdaq Stock Market, Inc., and such counsel received no information stating that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution. In rendering such opinions, such counsel may rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and the Bank, and public officials. On each Delivery Date, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall also deliver a letter to you stating that nothing has come to his their attention that would lead him which leads them to believe that that, as of the effective date of the Registration Statement and as of each Delivery Date, the Registration Statement, as the Time of Sale Prospectus or the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the ProspectusProspectus or, as of its date, any further amendment or supplement thereto made by the Closing DateCompany prior to the Delivery Date (in each case, except for the financial statements and the related schedules and other financial and statistical information included therein, as to which such counsel need not address) contains any an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. With respect to such statement, such counsel may state that their belief is based upon the procedures set forth therein, but is without independent check or verification.
(cd) Deloitte At 10:00 a.m., Richmond, Virginia time, on the date of this Agreement and also at each Delivery Date, ▇▇▇▇▇▇▇ & Touche Company, LLP will shall have furnished to the Underwriter you a letterletter or letters, dated as the respective dates of the Closing Datedelivery thereof, in form and substance satisfactory to you, containing statements and information of the Underwriter, type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(e) (i) The Company, the Bank or the Bank Subsidiaries shall not have sustained since the date of the latest audited financial statements included in the Prospectus, any loss or interference with their respective businesses from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or expressly contemplated in the Time of Sale Prospectus and the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus there shall not have been any change in the capital stock or long-term debt of the Company, the Bank or any of the Bank Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company, the Bank or any of the Bank Subsidiaries, otherwise than as set forth or contemplated in the Time of Sale Prospectus and the Prospectus, the effect that they of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at such Delivery Date on the terms and in the manner contemplated by the Prospectus.
(f) On or after the date hereof there shall not have performed certain specified procedures occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the Nasdaq Stock Market, Inc.; (ii) a suspension or material limitation in trading in the Company’s securities on the Nasdaq Stock Market, Inc.; (iii) a general moratorium on commercial banking activities declared by either Federal, New York or Virginia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; or (iv) (A) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, or (B) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, including without limitation, as a result of which they have determined that terrorist activities occurring after the date hereof, if the effect of any such information as event specified in clause (A) or (B), in the judgment of the Underwriter may reasonably request makes it impracticable or inadvisable to proceed with the public offering or the delivery of an accountingthe Securities being delivered at such Delivery Date on the terms and in the manner contemplated in the Time of Sale Prospectus or Prospectus;
(g) The Company shall have furnished or caused to be furnished to you copies of agreements between the Company and each of the executive officers and directors of the Company specified by you, financial in form and content satisfactory to you, pursuant to which such persons agree not to offer, sell, or statistical nature contract to sell, or otherwise dispose of, any shares of the Series B Preferred Stock and the Company’s common stock beneficially owned by them, including any shares of Series B Preferred Stock acquired in the offering contemplated hereby, or any securities convertible into, or exchangeable for, shares of the Series B Preferred Stock and the Company’s common stock on or before the 90th day after the date of this Agreement without your prior written consent.
(h) The Company shall have furnished or caused to be furnished to you on the date of this Agreement and on the Delivery Date certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of the date hereof and the Delivery Date, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Delivery Date, as to the matters set forth in the Definitive Free Writing Prospectus subsections (a) and the Prospectus Supplement under the caption “The Initial Mortgage Loans” (e) of this Section 7 and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationas to such other matters as you may reasonably request.
(di) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Securities shall have been rated “AAA” by Standard & Poor’s, a division approved for quotation and trading on the Nasdaq Capital Market. If any of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates the conditions specified in this Section 7 shall not have been rated “AA+” fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by S&P, “AA+” the Underwriter. Notice of such cancellation shall be given to the Company in writing or by Fitch, “AA telephone or facsimile (highwith written confirmation of receipt)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P..
Appears in 1 contract
Sources: Underwriting Agreement (Monarch Financial Holdings, Inc.)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Offered Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof 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 Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP The Underwriter shall have furnished received from PricewaterhouseCoopers LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter opinionsand counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Date, substantially updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the effect set forth in Exhibit A.Underwriter and counsel for the Underwriter.
(b) The Depositor 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 Offered Certificates shall have furnished been duly taken and made. At and prior to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to no stop order suspending the effect that the signer effectiveness of such certificate has carefully examined the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the Prospectus knowledge of the Company or the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and that:
delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or the Servicer which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Offered Certificates; (ii) any downgrading in the rating of the Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of the Servicer (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, North Carolina or New York 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 Underwriter, 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 Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of an executive officer of the Company in which such officer shall state that, to the best of such officer's knowledge after reasonable inspection, (i) the representations and warranties of the Depositor Company contained in this Agreement the Basic Documents are true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, Date and (ii) the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(iie) No stop order suspending the effectiveness The Underwriter shall have received a certificate of the Registration Statement has been issued and no proceedings for that purpose have been instituted oran executive officer of BANA, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, dated as of the Closing Date, to the effect that, to the ▇▇▇▇ of such officer's knowledge, (i) the representations and warranties contained in the Mortgage Loan Purchase Agreement are true and correct with the same force and effect as though made on and as of the Closing Date and (ii) such officer has reviewed the Final Prospectus as amended or supplemented to the Closing Date and nothing has come to such officer's attention that would lead such officer to believe that the Final Prospectus as amended or supplemented, insofar as it relates to BANA or the Mortgage Loans originated or acquired by BANA, contains any untrue statement of a material fact or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading.
(f) The Underwriter shall have received an opinion of Cadwalader, or Wickersham & Taft LLP, special counsel to the Compa▇▇, ▇▇▇▇▇ the Clos▇▇▇ Dat▇, ▇n form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(h) The Underwriter shall have received from Cadwalader, Wickersham & Taft LLP, special counsel for the Underwriter, a l▇▇▇▇▇ ▇▇▇▇d the ▇losing Date with respect to the Final Prospectus, substantially to the effect that nothing has come to such counsel's attention in the course of its review of the Final Prospectus which causes it to believe that the Final Prospectus, as of the date of the Prospectus Supplement or the Closing Date, contains contained any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(ci) Deloitte & Touche LLP will The Underwriter shall have furnished received an opinion of reasonably acceptable counsel to the Underwriter a letterTrustee and the Securities Administrator, dated as of the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(j) On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(k) At the Closing Date, the Certificates and the Pooling Agreement will conform in all material respects to the descriptions thereof contained in the Final Prospectus.
(l) 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, in the opinion of counsel to the Underwriter, 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 effect authorization, form and validity of this Agreement, the Pooling Agreement, the Mortgage Loan Purchase Agreement, the Certificates, 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 have performed certain specified procedures as a result may reasonably request to enable them to pass upon such matters. The Company will provide or cause to be provided to the Underwriter such conformed copies of which they have determined that such information opinions, certificates, letters and documents as the Underwriter may reasonably request of an accountingrequest. All opinions, financial letters, evidence and certificates mentioned above or statistical nature set forth elsewhere in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees this Agreement shall be deemed to be in compliance with the accounting records of provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding Underwriter. If any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates condition specified in this Section 6 shall not have been rated “AAA” fulfilled when and as required to be fulfilled, this Agreement may be terminated by Standard & Poor’sthe Underwriter by notice to the Company at any time at or prior to the Closing Date, a division and such termination shall be without liability of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.any party to any other party except as provided in Section 7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Mortgage Securities Inc)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor County contained herein herein, as of the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the County and the Developer made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor County of its obligations to be performed hereunder at or prior to the Closing Date and to the following additional conditions:
(a) ▇▇▇At the Closing Date, the County Documents shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Underwriter, and there shall have been taken in connection therewith, with the issuance of the Bonds and with the transactions contemplated thereby and by this Bond Purchase Agreement, all such actions as, in the opinion of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ US LLP Bond Counsel for the County, shall have furnished to be necessary and appropriate;
(b) Between the Underwriter opinions, dated date hereof and the Closing Date, substantially to the effect market price or marketability of the Bonds at the initial offering prices set forth in Exhibit A.the Official Statement shall not have been materially adversely affected, in the judgment of the Underwriter (evidenced by a written notice to the County terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), which judgment shall be formed (to the maximum extent reasonably practicable under the circumstances) only after consultation with the County’s financial advisor, by reason of any of the following:
(b1) The Depositor shall have furnished legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Underwriter a certificate Congress by the President of the DepositorUnited States, signed the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the PresidentTax Court of the United States of America, Senior Vice President or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department or the Internal Revenue Service of the United States of America, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon the interest that would be received by the holders of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
(2) legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any Vice President, dated other governmental agency having jurisdiction of the Closing Datesubject matter, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties obligations of the Depositor in this Agreement are true and correct in all material respects on and as general character of the Closing Date with Bonds, or the same effect Bonds, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as if made on amended, or that the Closing DateIndenture is not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the general character of the Bonds, or of the Bonds, including any or all underwriting arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws, rules or regulations as amended and 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 the Closing Datethen in effect;
(ii3) No stop order suspending any amendment to the effectiveness federal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the validity or enforceability of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; andReassessments;
(iii4) Nothing has come the declaration of war or the escalation of, or engagement in, military hostilities by the United States or the occurrence of any other national or international emergency or calamity relating to his attention that would lead him the effective operation of the government of, or the financial community in, the United States the effect of which is such as to believe make it impracticable or inadvisable to proceed with the remarketing and redelivery of the Bonds as contemplated hereby or by the Official Statement;
(5) the declaration of a general banking moratorium by federal, State of New York, or State of California authorities, or the general suspension of trading on any national securities exchange;
(6) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
(7) an order, decree or injunction of any court of competent jurisdiction, or order, ruling, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, issued or made to the effect that the Registration issuance, offering or sale of obligations of the general character of the Bonds, or the remarketing, reoffering or redelivery of the Bonds, as contemplated hereby or by the Official Statement, as is or would be in violation of the Closing Datefederal securities laws as amended and then in effect; or
(8) any event occurring, contains or information becoming known, which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or results in the Official Statement containing any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omitting to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will On the Closing Date, the Underwriter shall have furnished received counterpart originals or certified copies of the following documents, in each case satisfactory in form and substance to the Underwriter Underwriter:
(1) The County Documents, together with a letter, certificate dated as of the Closing DateDate of the Clerk of the Board of Supervisors to the effect that each such document is a true, correct and complete copy of the one duly approved by the Board of Supervisors;
(2) The Official Statement, duly executed by the County;
(3) Unqualified approving opinion for the Bonds, dated the Closing Date and addressed to the County, of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ US LLP, Bond Counsel for the County, in the form attached to the Preliminary Official Statement as Appendix D, and substance satisfactory a reliance letter dated the Closing Date addressed to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as approving opinion addressed to the County may be relied upon by the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in to the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.same extent as if such opinion was addressed to them;
(d4) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4A supplemental opinion, Class A-1dated the Closing Date and addressed to the Underwriter, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The Norton ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇ CompaniesUS LLP, Inc. Bond Counsel for the County, to the effect that (“S&P”)i) this Bond Purchase Agreement, “AAA” by Fitch Ratingsthe Indenture, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) the Escrow Agreement and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall the Continuing Disclosure Certificate have been rated “AA+” duly authorized, executed and delivered by S&Pthe County, “AA+” and, assuming such agreements constitute valid and binding obligations of the other parties thereto, constitute the legally valid and binding agreements of the County enforceable in accordance with their terms, except as enforcement may be limited by Fitchbankruptcy, “AA (high)” by DBRS moratorium, insolvency or other laws affecting creditor’s rights or remedies and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.is subject to general principles of equity;
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Offered Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof 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 Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP The Underwriter shall have furnished received from Deloitte & Touche LLP (i) a letter, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and the rules and regulations of the Commission promulgated thereunder and otherwise in form and substance reasonably satisfactory to the Underwriter opinionsand counsel to the Underwriter and (ii) if requested by the Underwriter, a letter dated the Closing Date, substantially updating the letter referred to in clause (i) above, in form and substance reasonably satisfactory to the effect set forth in Exhibit A.Underwriter and counsel for the Underwriter.
(b) The Depositor 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 Offered Certificates shall have furnished been duly taken and made. At and prior to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to no stop order suspending the effect that the signer effectiveness of such certificate has carefully examined the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted, or to the Prospectus knowledge of the Company or the Underwriter, shall have been contemplated by the Commission.
(c) Subsequent to the execution and that:
delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or the Servicer which, in the reasonable judgment of the Underwriter, materially impairs the investment quality of the Offered Certificates; (ii) any downgrading in the ratings of the securities of the Servicer by any "nationally recognized statistical rating organization" (as such term is defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its ratings of any securities of the Servicer (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, North Carolina or New York 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 Underwriter, 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 Offered Certificates.
(d) The Underwriter shall have received a certificate dated the Closing Date of an executive officer of the Company in which such officer shall state that, to the best of such officer's knowledge after reasonable inspection, (i) the representations and warranties of the Depositor Company contained in this Agreement the Basic Documents are true and correct in all material respects on and as of the Closing Date with the same force and effect as if made on the Closing Date, Date and (ii) the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(iie) No stop order suspending The Underwriter shall have received an opinion of reasonably acceptable counsel to the effectiveness Trustee, dated the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(f) The Underwriter shall have received an opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Company and Bank of America, National Association, dated the Closing Date, in form and substance satisfactory to the Underwriter and counsel for the Underwriter.
(g) The Underwriter shall have received copies of any opinions of counsel for the Company that the Company is required to deliver to any Rating Agency. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or accompanied by reliance letters addressed to the Underwriter.
(h) The Underwriter shall have received from Hunton & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Underwriter, a letter addressed to the Underwriter dated the Closing Date with respect to the Final Prospectus, substantially to the effect that no facts have come to such counsel's attention in the course of its review of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him Final Prospectus which causes it to believe that the Registration StatementFinal Prospectus, as of the date of the Prospectus Supplement or the Closing Date, contains contained any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need not express any view as to any information incorporated by reference in the Final Prospectus or as to the adequacy or accuracy of the financial, numerical, statistical or quantitative information included in the Final Prospectus.
(ci) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of On or before the Closing Date, the Underwriter shall have received evidence satisfactory to it that each class of Offered Certificates has been given the ratings set forth on Schedule I hereto.
(j) At the Closing Date, the Certificates and the Pooling and Servicing Agreement will conform in form all material respects to the descriptions thereof contained in the Final Prospectus.
(k) The Underwriter shall not have discovered and substance satisfactory 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 counsel to the Underwriter, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(l) All corporate proceedings and other legal matters relating to the effect that they have performed certain specified procedures as a result authorization, form and validity of which they have determined that such information as this Agreement, the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus Pooling and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicableServicing Agreement, the Mortgage Loan files of Purchase Agreement, the DepositorCertificates, excluding any questions of the Registration Statement and the Final Prospectus, and all other legal interpretationmatters 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.
(dm) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Underwriter shall have been rated “AAA” by Standard received a certificate (upon which Hunton & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ CompaniesLLP shall be entitled to rely in rendering its opinions and letters under the Basic Documents) dated the Closing Date of an officer of the Custodian in which such officer shall state that, Inc. to the best of such officer's knowledge after reasonable investigation: (“S&P”), “AAA” by Fitch Ratings, Inc. i) the Custodian is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement; (“Fitch”), “AAA” by Dominion Bond Rating Service ii) the information in the Prospectus Supplement related to the Custodian (“DBRS”the "Custodian Disclosure") includes (a) the Custodian's correct name and “Aaa” by form of organization and (b) a discussion of the Custodian's procedures for safekeeping and preservation of the mortgage loans; and (iii) the Custodian Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Custodian Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading.
(n) The Underwriter shall have received a certificate (upon which Hunton & ▇▇▇▇▇’▇▇▇ Investors ServiceLLP shall be entitled to rely in rendering its opinions and letters under the Basic Documents) dated the Closing Date of an officer of the Trustee in which such officer shall state that, Inc. to the best of such officer's knowledge after reasonable investigation: (“Moody’s”)i) the Trustee is not an affiliate of any other entity listed as a transaction party in the Prospectus Supplement (ii) the information in the Prospectus Supplement related to the Trustee (the "Trustee Disclosure") includes (a) the Trustee's correct name and form of organization and (b) a discussion of the Trustee's experience serving as trustee for asset-backed securities transactions involving mortgage loans; and (iii) the Trustee Disclosure is true and correct in all material respects and nothing has come to his or her attention that that would lead such officer to believe that the Trustee Disclosure contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading. The Class M-1 Certificates Company will provide or cause to be provided to the Underwriter such conformed copies of such opinions, certificates, letters and documents as the Underwriter 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 Underwriter. If any condition specified in this Section 6 shall not have been rated “AA+” fulfilled when and as required to be fulfilled, this Agreement may be terminated by S&Pthe Underwriter by notice to the Company at any time at or prior to the Closing Date, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates such termination shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.be without liability of any party to any other party except as provided in Section 7.
Appears in 1 contract
Sources: Underwriting Agreement (Banc of America Funding 2006-G Trust)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-41, Class A-1A-1A1, Class A-1A2, Class ▇-▇▇, ▇▇▇▇▇ ▇-▇▇, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Sources: Underwriting Agreement (Home Equity Mortgage Pass-Through Certificates, Series 2006-1)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase the Certificates Offered Securities to be purchased by it shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates officer's certificate pursuant to the provisions hereof, to the performance in all material respects by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for that purpose shall be pending or, to the knowledge of the Company, threatened, and the Prospectus Supplement shall have furnished been filed or transmitted for filing by means reasonably calculated to result in a filing with the Underwriter opinions, dated Commission pursuant to Rule 424 under the Closing Date, substantially to the effect set forth in Exhibit A.Act.
(b) The Depositor Company shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice Presidentcertificate, dated the Closing Date, of the Company, signed by a vice president of the Company, to the effect that the signer of such certificate has carefully examined the Registration Statement Statement, the Prospectus, this Agreement, and the Prospectus [_______________] Agreement, as applicable, and that:
(i) The representations and warranties of the Depositor Company in this Agreement and the [_______________] Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued issued, and no proceedings for that purpose have been instituted and are pending or, to his knowledge, threatened; andhave been threatened as of the Closing Date;
(iii) Nothing has come to his the attention of such person that would lead him to believe that the Registration Statement, as of the Closing Date, Prospectus (other than any Computational Materials or ABS Term Sheets incorporated therein by reference) contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since [____________________], there has been no material adverse change (not in the ordinary course of business) in connection with the Company.
(c) Deloitte & Touche LLP will The Company shall have furnished or caused to have been furnished to the Underwriter a lettercertificate, dated as of the Closing Date, in form and substance satisfactory to of the UnderwriterAsset Seller, signed by a vice president or an assistant vice president of the Asset Seller, to the effect that they have performed certain specified procedures as a result the signer of which they have determined that such information as certificate has carefully examined the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and nothing has come to the attention of such person that would lead him to believe that the Prospectus Supplement under contains any untrue statement of a material fact with respect to the caption “The Initial Mortgage Loans” and elsewhere therein agrees Asset Seller or the Assets or omits to state any material fact with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.respect to
Appears in 1 contract
Sources: Underwriting Agreement (Union Planters Home Equity Corp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Securities shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company and the Selling Stockholders contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Depositor Company and the Selling Stockholders made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) Each of the Preliminary Prospectus, the Prospectus, and any supplement thereto, will be filed in the manner and within the time period required by Rule 424(b); any material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriter its opinions, dated the Closing Date and addressed to the Underwriter, substantially in the forms attached hereto as Exhibits B and C, and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company, to have furnished to the Underwriter her opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit D.
(c) The Company shall have requested and caused (i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special regulatory counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit E and (ii) (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ P.C., and (B) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special intellectual property counsels for BML and the Company, respectively, to have furnished to the Underwriter their opinions, each dated the Closing Date and addressed to the Underwriter, substantially in the form attached hereto as Exhibit F.
(d) The Selling Stockholders shall have requested and caused ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Esq., Kleinberg, Kaplan, ▇▇▇▇▇ & ▇▇▇▇▇ and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall and such other counsel to the Selling Stockholders as are reasonably acceptable to the Underwriter, to have furnished to the Underwriter their respective opinions dated the Closing Date and addressed to the Underwriter, covering the matters specified in Exhibit G.
(e) The Underwriter shall have received from Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date, substantially Date and addressed to the effect set forth in Exhibit A.Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(bf) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice President or any Vice PresidentChief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement Statement, the Prospectus, the Disclosure Package and the Prospectus any supplements or amendments thereto and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included or incorporated by reference in the Prospectus (exclusive of any supplement thereto), there has come been no Material Adverse Effect.
(g) The Selling Stockholders shall have furnished to his attention that would lead him the Underwriter a certificate, signed on behalf of the Selling Stockholders and delivered pursuant to believe the Custody Agreement, dated the Closing Date, to the effect that the Registration Statement, representations and warranties of the Selling Stockholders in this Agreement are true and correct on and as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make Date with the statements therein not misleading, or that the Prospectus, same effect as of if made on the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ch) The Company shall have requested and caused Deloitte & Touche LLP will to have furnished to the Underwriter a letter, at the Closing Date, dated as of the Closing Date, in form and substance satisfactory to the Underwriter and which should cover, among other customary matters, the Preliminary Prospectus as filed pursuant to Rule 424(b) prior to the Execution Time (including the documents incorporated by reference therein).
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(j) Prior to the effect that they Closing Date, the Company and the Selling Stockholders shall have performed certain specified procedures as a result of which they have determined that furnished to the Underwriter such information further information, customary closing and secretary certificates and documents as the Underwriter may reasonably request of an accountingrequest, financial including, without limitation, Forms W-8 or statistical nature set forth in W-9, as required, from the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationSelling Stockholders.
(dk) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Securities shall have been rated “AAA” by Standard & Poor’sduly approved for quotation on the Nasdaq National Market, a division and satisfactory evidence of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates such actions shall have been rated “AA+” provided to the Underwriter.
(l) As soon as practicable following the Execution Time and prior to the Closing Date, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto from Endo Pharma LLC and each executive officer and director of the Company, addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by S&P, “AA+” the Underwriter. Notice of such cancellation shall be given to the Company and the Selling Stockholders in writing or by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’stelephone or facsimile confirmed in writing. The Class M-2 Certificates documents required to be delivered by this Section 6 shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.be delivered at the Skadden Offices on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Endo Pharmaceuticals Holdings Inc)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase borrow the Certificates Underwritten Securities and pay the Loan Fee as provided herein shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(ai) If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and 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 threatened.
(ii) If, at or subsequent to the Execution time it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective, the registration statement or such post-effective amendment shall have become effective no later than such date and time as consented to in writing by you, and all filings, if any, required by Rules 424 and 430A Under the Act shall have been timely made.
(b) The Company shall have requested and caused Irell & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, covering such matters as are typically provided in opinions delivered in connection with underwritten equity offerings, in form and substance reasonably satisfactory to you.
(c) ▇▇▇▇, Raywid & ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP L.L.P., special regulatory counsel to the Company, shall have furnished to the Underwriter opinionsyou their written opinion, dated the Closing Date, substantially in form and substance reasonably satisfactory to you, to the effect that:
(i) The issue and sale of the Underwritten Securities and the compliance by the Company with the Share Lending Agreement and the consummation of the transactions herein and therein contemplated do not and will not contravene the Cable Acts or any order, rule or regulation of the FCC to which the Company or any of its subsidiaries or any of their property is subject; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid. To the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(ii) To the best of such counsel’s knowledge, no consent, approval, authorization or order of, or registration, qualification or filing with the FCC is required under the Cable Acts or any order, rule or regulation of the FCC in connection with the issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of this Agreement and the Share Lending Agreement and the consummation of the transactions herein and therein contemplated; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid; to the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(iii) The statements set forth in Exhibit A.the Prospectus under the caption "Regulation and Legislation" and under the caption "Risk Factors" under the subheading "Risks relating to regulatory and legislative matters," insofar as they constitute summaries of laws referred to therein, concerning the Cable Acts and the published rules, regulations and policies promulgated by the FCC thereunder, fairly summarize the matters described therein;
(biv) To such counsel’s knowledge based solely upon its review of publicly available records of the FCC and operational information provided by the Company’s and the Company’s subsidiaries’ management, the Company and its subsidiaries hold all FCC licenses for cable antenna relay services necessary to conduct the business of the Company and its subsidiaries as currently conducted, except to the extent the failure to hold such FCC licenses would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; and
(v) Except as disclosed in the Prospectus and except with respect to rate regulation matters, and general rulemakings and similar matters relating generally to the cable television, industry, to such counsel’s knowledge, based solely upon its review of the publicly available records of the FCC and upon inquiry of the Company’s and its subsidiaries’ management, during the time the cable systems of the Company and its subsidiaries have been owned by the Company and its subsidiaries (A) there has been no adverse FCC judgment, order or decree issued by the FCC relating to the ongoing operations of any of the Company or one of its subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect; and (B) there are no actions, suits, proceedings, inquiries or investigations by or before the FCC pending or threatened in writing against or specifically affecting the Company or any of its subsidiaries or any cable system of the Company or any of its subsidiaries which could, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect;
(d) The Depositor General Counsel or Acting General Counsel of the Company, shall have furnished to you his written opinion, dated as of the Closing Date, in form and substance satisfactory to you, to the effect that:
(i) Each subsidiary of the Company listed on a schedule attached to such counsel’s opinion (the "Charter Subsidiaries") has been duly incorporated or formed, as the case may be, and is validly existing as a corporation, limited liability company or partnership, as the case may be, in good standing under the laws of its jurisdiction of incorporation or formation; and all the issued shares of capital stock, limited liability company interests or partnership interests, as the case may be, of each Charter Subsidiary are set forth on the books and records of the Company and, except for those Charter Subsidiaries that are general partners, assuming receipt of requisite consideration therefor, are fully paid and nonassessable (in the case of corporate entities) and not subject to additional capital contributions (in the case of limited liability company entities and limited partnerships); and, except as otherwise set forth in the Prospectus, and except for liens not prohibited under the credit agreements listed on such schedule, all outstanding shares of capital stock of each of the Charter Subsidiaries are owned by the Company, either directly or indirectly or through wholly-owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(ii) Each of the Company and the Charter Subsidiaries has been duly qualified as a foreign corporation, partnership or limited liability company, as the case may be, for the transaction of business and is in good standing under the laws of each jurisdiction set forth in a schedule to such counsel’s opinion;
(iii) To the best of such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company, or any of the Company’s subsidiaries is party or of which any property of the Company or any of the Company’s subsidiaries is the subject, of a character required to be disclosed in the Registration Statement, which is not so disclosed, except for such proceedings which are not likely to have, individually or in the aggregate, a Material Adverse Effect; and, to the best of such counsel’s knowledge and other than as set forth in the Prospectus, no such proceedings are overtly threatened by governmental authorities or by others; and
(iv) The issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of the Share Lending Agreement and the consummation of the transactions therein contemplated will not result in a violation of the provisions of the certificate of incorporation or by-laws, or certificate of formation or limited liability company agreement or partnership agreement, as the case may be, of any of the Charter Subsidiaries.
(e) On the Execution Time and also on the Closing Date, KPMG LLP shall have furnished to you a "comfort" letter or letters of the type customarily provided in connection with underwritten equity offerings, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you;
(f) The Underwriter shall have received from Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions as are customarily provided by underwriters' counsel in connection with the registration of equity securities in underwritten offerings on Form S-1, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Underwritten Securities, the Registration Statement and the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice Chairman of the Board or the President and the principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his the Company's knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has come been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(h) Subsequent to his attention that would lead him to believe that the Execution Time or, if earlier, the dates as of which information is given in the Registration StatementStatement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Underwritten Securities as contemplated by the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will Company shall have furnished to the Underwriter a lettersuch further information, dated as of the Closing Date, in form certificates and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationrequest.
(dj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as used for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Underwritten Securities shall have been rated “AAA” listed and admitted and authorized for trading on the Nasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by Standard the Underwriter. Notice of such cancelation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Weil, Gotshal & Poor’s▇▇▇▇▇▇ LLP, a division of The counsel for the Underwriter, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇-, ▇▇▇ ▇▇▇▇, ▇▇▇ Companies▇▇▇▇, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Charter Communications Inc /Mo/)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Your obligation hereunder to purchase the Certificates Designated Notes shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company and the Sponsor contained herein as of the date hereof hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date and as of the Closing Date, to the accuracy of the statements of the Depositor Company and the Sponsor made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company and the Sponsor of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and not withdrawn and no proceedings for that purpose shall have been instituted or threatened; and the Final Prospectus shall have been filed or transmitted for filing with the Commission in accordance with Rule 424 under the 1933 Act. Any request of the Commission for inclusion of additional information in the Registration Statement or the Base Prospectus shall have been complied with.
(b) You shall have received from Dewey Ballantine LLP, your counsel, a favorable opinion, date▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇e, to the effect that:
(i) No facts have come to the attention of such counsel which lead them to believe that the Registration Statement and the Final Prospectus (other than the financial statements and other financial and statistical data contained therein, as to which we are not called upon to express any belief), at the time the Registration Statement became effective, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein not misleading, or that the Final Prospectus (other than the financial statements and other financial and statistical data contained therein, as to which we are not called upon to express any belief), as of its date and as of the date hereof, contained or contains any untrue statement of a material fact, or omitted or omits to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may: (1) express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Trust Agreement, the Indenture, the Sale and Servicing Agreement, the Purchase Agreement and the Insurance and Indemnity Agreement; (2) assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Company; (3) qualify such opinion only as to the federal laws of the United States of America, the laws of the State of New York and the general corporation law of the State of Delaware. Such counsel shall also confirm that you may rely, on and as of the Closing Date, on any opinion or opinions of such counsel submitted to the rating agency or agencies rating the Designated Notes as if addressed to you and dated the Closing Date.
(c) You shall have received from Dewey Ballantine LLP, your counsel, a favorable opinion, dat▇▇ ▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinionste, dated the Closing Date, substantially to the effect set forth in Exhibit A.that (i) for federal income tax purposes the Designated Notes will be treated as indebtedness and (ii) the Trust will not be treated as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool;
(bd) The Depositor You shall have furnished to the Underwriter received a certificate of the Depositorcertificate, signed by the Presidentpresident, Senior Vice President a senior vice president or any Vice Presidenta vice president of the Company and the Sponsor, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement Statement, the Purchase Agreement, the Trust Agreement, the Indenture, the Sale and Servicing Agreement, the Prospectus Insurance and Indemnity Agreement, and this Agreement and that, to the best of his or her knowledge based upon reasonable investigation:
(i) The a. the representations and warranties of the Depositor Company and the Sponsor in this Agreement are true and correct in all material respects on and Agreement, as of the Closing Date with the same effect as if made on the Closing Date, and in the Depositor Sale and Servicing Agreement, the Trust Agreement, the Purchase Agreement, and the Insurance and Indemnity Agreement and in all related agreements, as of the date specified in such agreements, are true and correct, and the Company and the Sponsor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
b. there are no actions, suits or proceedings pending, or to the best of such officer's knowledge, threatened against or affecting the Company or the Sponsor which if adversely determined, individually or in the aggregate, would be reasonably likely to adversely affect the Company's or the Sponsor's obligations under the Sale and Servicing Agreement, the Insurance and Indemnity Agreement, the Purchase Agreement or this Agreement in any material way or the Sponsor's obligations under the Trust Agreement in any material way; and no merger, liquidation, dissolution or bankruptcy of the Company or the Sponsor is pending or contemplated;
c. the information contained in the Registration Statement and the Final Prospectus relating to the Company and the Sponsor, the Mortgage Loans or the servicing procedures of it or its affiliates or subservicer is true and accurate in all material respects and nothing has come to his or her attention that would lead such officer to believe that the Registration Statement or Final Prospectus includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading;
d. the information set forth in the Schedule of Mortgage Loans required to be furnished pursuant to the Purchase Agreement and the Sale and Servicing Agreement is true and correct in all material respects;
e. there has been no amendment or other document filed affecting the certificate of incorporation or bylaws of the Company or the certificate of formation or operating agreement of the Sponsor, in each case since _______, 200_, and no such amendment has been authorized. No event has occurred since _______, 200_, which has affected the good standing of the Company under the laws of the State of New York or the good standing of the Sponsor under the laws of the State of Delaware;
f. there has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company, the Sponsor and its subsidiaries, taken as a whole, from _______, 200_.
g. on or prior to the Closing Date, there has been no downgrading, nor has any notice been given of (iiA) No any intended or potential downgrading or (B) any review or possible changes in rating the direction of which has not been indicated, in the rating, if any, accorded the Company or its affiliates or in any rating accorded any securities of the Company, if any, by any "nationally recognized statistical rating organization," as such term is defined for purposes of the 1933 Act;
h. each person who, as an officer or representative of the Company or the Sponsor, signed or signs the Registration Statement, the Sale and Servicing Agreement, the Trust Agreement, the Insurance and Indemnity Agreement, this Agreement, the Purchase Agreement or any other document delivered pursuant hereto, on the date of such execution, or on the Closing Date, as the case may be, in connection with the transactions described in the Sale and Servicing Agreement, the Trust Agreement, the Insurance and Indemnity Agreement, the Purchase Agreement and this Agreement was, at the respective times of such signing and delivery, and is now, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents are their genuine signatures; and
i. no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his the Company's or the Sponsor's knowledge, threatened; and
(iii) Nothing has come . The Company and the Sponsor shall attach to his attention that would lead him to believe that the Registration Statementsuch certificate a true and correct copy of its certificate of incorporation or certificate of formation, as appropriate, and bylaws or operating agreement, as appropriate, which are in full force and effect on the date of such certificate and a certified true copy of the Closing Date, contains any untrue statement resolutions of a material fact its Board of Directors or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectusmembers, as of appropriate, with respect to the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingtransactions contemplated herein.
(ce) Deloitte You shall have received from Tobin & Touche LLP will have furnished Tobin, counsel to the Underwriter a letterCompany, an opinion, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The C▇▇▇▇▇▇-g D▇▇▇▇ Companies, Inc. to the effect that:
(“S&P”)i) Each of the Company and the Sponsor has been duly organized and is validly existing as a corporation (with respect to the Company) or a limited liability company (with respect to the Sponsor) in good standing under the laws of its state of formation and is qualified to do business in each state necessary to enable it to perform its obligations under the Sale and Servicing Agreement, “AAA” this Agreement, the Indenture, the Purchase Agreement, the Trust Agreement and the Insurance and Indemnity Agreement and has all power and authority necessary to own or hold its properties and to conduct its business as now conducted by Fitch Ratingsit and to enter into and perform its obligations under this Agreement, Inc. the Indenture, the Trust Agreement, the Sale and Servicing Agreement, the Purchase Agreement and the Insurance and Indemnity Agreement;
(“Fitch”)ii) To the best knowledge of such counsel, “AAA” there are no actions, proceedings or investigations pending or threatened against or affecting the Company or the Sponsor before or by Dominion Bond Rating Service any court, arbitrator, administrative agency or other governmental authority reasonably likely to be adversely determined that would materially and adversely affect the ability of the Company or the Sponsor to carry out the transactions contemplated in this Agreement, the Indenture, the Trust Agreement, the Sale and Servicing Agreement, the Purchase Agreement or the Insurance and Indemnity Agreement;
(“DBRS”iii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Company or the Sponsor of the transactions contemplated herein, except such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and “Aaa” distribution of the Designated Notes and except any recordation of the assignments of the Mortgage Loans to the Trustee pursuant to the Sale and Servicing Agreement that have not yet been completed;
(iv) The Company is not in violation of its certificate of incorporation or by-laws, the Sponsor is not in violation of its certificate of formation or operating agreement, neither the Company nor the Sponsor is in default under any agreement, indenture or instrument the effect of which violation or default would be material to the Company or the Sponsor, and neither the issuance and sale of the Designated Notes, nor the execution or delivery of or performance under this Agreement, the Indenture, the Trust Agreement, the Sale and Servicing Agreement, the Purchase Agreement or the Insurance and Indemnity Agreement, nor the consummation of any other of the transactions contemplated herein or therein will conflict with or result in a breach or violation of any term or provision of, or constitute a default (or an event which with the passing of time or notification, or both, would constitute a default) under, the certificate of incorporation or by-laws of the Company, the certificate of formation or operating agreement of the Sponsor, or, to the knowledge of such counsel, any indenture or other agreement or instrument to which the Company or the Sponsor or any of its affiliates is a party or by ▇▇▇▇▇’▇ Investors Servicewhich it or any of them is bound, Inc. or any New York or federal statute or regulation applicable to the Company or the Sponsor or any of its affiliates or, to the knowledge of such counsel, any order of any New York or federal court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or the Sponsor or any of its affiliates;
(“Moody’s”). v) Each of the Company and the Sponsor possesses all material licenses, certificates, authorities or permits issued by the appropriate State, Federal or foreign regulatory agencies or bodies necessary to conduct the business now conducted by it and as described in the Final Prospectus, and neither the Company nor the Sponsor has received notice of any proceedings relating to the revocation or modification of any such license, certificates, authority or permit which if decided adversely to the Company or the Sponsor would, singly or in the aggregate, materially and adversely affect the conduct of its business, operations or financial condition.
(vi) The Class M-1 Certificates shall Sale and Servicing Agreement, this Agreement, the Indenture, the Purchase Agreement and the Insurance and Indemnity Agreement have been rated “AA+” duly authorized, executed and delivered by S&Pthe Company and the Sponsor and constitute legal, “AA+” valid and binding agreements of the Company and the Sponsor, enforceable against the Company and the Sponsor in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and to general principles of equity, regardless of whether enforcement is sought in a proceeding in equity or at law;
(vii) The Trust Agreement has been duly authorized, executed and delivered by Fitchthe Sponsor and constitutes a legal, “AA valid and binding agreement of the Sponsor enforceable against the Sponsor in accordance with its terms, subject as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and to general principles or equity, regardless of whether enforcement is sought in a proceeding in equity or at law;
(high)” viii) The direction by DBRS the Sponsor to the Trustee to execute, authenticate and “Aa1” deliver the Designated Notes has been duly authorized by Moody’s. the Sponsor, and the Designated Notes, when executed and authenticated in the manner contemplated in the Indenture, will be validly issued and outstanding and entitled to the benefits of the Indenture;
(ix) The Class M-2 Certificates shall Designated Notes and the Indenture conform in all material respects to the descriptions thereof contained in the Final Prospectus; and
(x) Neither the transfer of the Mortgage Loans to the Trust, the pledge of the Mortgage Loans, the issuance or sale of the Designated Notes nor the execution, delivery or performance by the Company and the Sponsor of this Agreement, the Trust Agreement, the Insurance and Indemnity Agreement, the Sale and Servicing Agreement or the Purchase Agreement (A) conflicts or will conflict with or results or will result in a breach of, or constitutes or will constitute a default under, (i) any term or provision of the certificate of incorporation or bylaws of the Company or the certificate of formation or operating agreement of the Sponsor; (ii) any term or provision of any material agreement, contract, instrument or indenture, to which the Company or the Sponsor is a party or is bound and known to such counsel; or (iii) any order, judgment, writ, injunction or decree of any court or governmental agency or body or other tribunal having jurisdiction over the Company or the Sponsor and known to such counsel; or (B) results in, or will result in the creation or imposition of any lien, charge or encumbrance upon the Trust or upon the Designated Notes, except as otherwise contemplated by the Indenture.
(xi) The Registration Statement has become effective under the 1933 Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and not withdrawn and no proceedings for that purpose have been rated “AA” by S&Pinstituted or threatened and not terminated; and the Registration Statement, “AA+” by Fitchthe Final Prospectus and each amendment or supplement thereto and the Indenture, “AA” by DBRS as of their respective effective or issue dates (other than the financial and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.statistical informa
Appears in 1 contract
Sources: Underwriting Agreement (Greenpoint Mortgage Securities Inc/)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter’s obligation to purchase the Certificates shall be subject to (i) the accuracy in all respects on and as of the Closing Date of the representations and warranties on the part of Alliance Bancorp and the Depositor contained Company herein contained; (ii) the performance by Alliance Bancorp and the Company of all of its obligations hereunder; and (iii) the following conditions as of the date hereof Closing Date:
6.1 No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for that purpose shall be pending or, to the knowledge of the Company, threatened by the Commission; and the Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission not later than the time required by Rule 424(b) under the Act.
6.2 Since May 1, 2007, there shall have been no material adverse change (or any development involving a prospective change) in the sole judgment of the Underwriter in the condition of the Company or Alliance Bancorp that, in the judgment of the Underwriter, impairs the investment quality of the Certificates so as to make it impracticable or inadvisable to market the Certificates on the terms and in the manner contemplated in the Prospectus.
6.3 The Company shall have delivered to the Underwriter a certificate, dated the Closing Date, of the President, a Senior Vice President or a Vice President of the Company to the accuracy effect that the signer of such certificate has examined this Agreement, the statements of Prospectus, the Depositor made in any Officers’ certificates pursuant to the provisions hereofPooling and Servicing Agreement and various other closing documents, and that, to the performance by the Depositor best of its obligations hereunder and to the following additional conditionshis or her knowledge after reasonable investigation:
(a) the representations and warranties of the Company in this Agreement and all other Transaction Documents to which it is a party are true and correct in all material respects; and
(b) the Company has, in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
6.4 Alliance Bancorp shall have delivered to the Underwriter a certificate, dated the Closing Date, of the President, a Senior Vice President or a Vice President of Alliance Bancorp to the effect that the signer of such certificate has examined this Agreement, the Prospectus, the Pooling and Servicing Agreement and various other closing documents, and that, to his or her actual knowledge the representations and warranties of Alliance Bancorp, in this Agreement and all other Transaction Documents to which Alliance Bancorp is a party are true and correct in all material respects as of the Closing Date.
6.5 The Underwriter shall have received the opinions and a letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP LLP, special counsel for the Company, dated the Closing Date and substantially to the effect set forth in Exhibit A-l, Exhibit A-2 and Exhibit A-3 and the opinion of in-house counsel for Alliance Bancorp, dated the Closing Date and substantially to the effect set forth in Exhibit ▇-▇.
6.6 The Underwriter shall have furnished received from ▇▇▇▇▇ ▇▇▇▇▇▇, counsel for the Underwriter, an opinion dated the Closing Date in form and substance satisfactory to the Underwriter.
6.7 The Certificates shall have been rated at least as described directly below by Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”) and ▇▇▇▇▇'▇ Investors Service, Inc. (“▇▇▇▇▇'▇”). Class A-1 AAA Aaa Class A-2 AAA Aaa Class A-3 AAA Aaa Class M-1 AA+ Aaa Class M-2 AA Aa1 Class M-3 AA- Aa1 Class M-4 A+ Aa2 Class M-5 A Aa3 Class M-6 A- A1 Class M-7 BBB+ A2 Class M-8 BBB A3 Class M-9 BBB- Baa1 The Underwriter opinionsshall have received a copy of the letter from each of the respective rating agencies to such effect; and such ratings shall not have been withdrawn on or before the Closing Date.
6.8 The Underwriter shall have received the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC special counsel to the Trustee, dated the Closing Date, substantially to the effect set forth in Exhibit A.C.
(b) 6.9 The Depositor Underwriter shall have furnished to the Underwriter received from KPMG, certified public accountants, a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, letter dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement date hereof and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, satisfactory in form and substance satisfactory to the Underwriter and the Underwriter’s counsel, to the effect that they have performed certain specified procedures procedures, all of which have been agreed to by the Underwriter, as a result of which they have determined that such certain information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption captions “The Initial Mortgage LoansPool”, “Description of the Certificates”, “Yield on the Certificates” and elsewhere therein “Pooling and Servicing Agreement” (and for the avoidance of doubt, any static pool data pursuant to Item 1105 of Regulation AB under the 1933 Act Regulations included or incorporated by reference in the Definitive Free Writing Prospectus or the Prospectus) agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, Company excluding any questions of legal interpretation.
(d) 6.10 The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Underwriter shall have been rated “AAA” by received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Company, and from in-house counsel to the Company, reliance letters with respect to any opinions delivered to Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (Inc.
6.11 The Underwriter shall have received a certificate, dated the Closing Date, of the President, a Senior Vice President or a Vice President of Alliance Bancorp and the Company as to the good standing of Alliance Bancorp and the Company and the due authorization by Alliance Bancorp of the transactions contemplated herein.
6.12 The Underwriter shall have received such further information, certificates and documents as the Underwriter may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Underwriter and the Underwriter’s counsel.
6.13 The information contained in the Definitive Free Writing Prospectus and the Prospectus in the section “Moody’s”)RISK FACTORS—The Sponsor and Servicer and Its Parent Have Breached Certain Covenants Under Their Respective Financing Arrangements” is true and correct in all material respects.
6.14 No lender has exercised any remedy with respect to a default under any indenture, contract, lease, mortgage, deed of trust, note, agreement or other evidence of indebtedness or other agreement, obligation or instrument to which Alliance Bancorp, the Company or any of their affiliates is a party or by which it or its properties are bound which would have a material adverse affect on the financial condition of Alliance Bancorp or the Company or their ability to enter into the transactions contemplated by this Agreement. The Class M-1 Certificates Company will furnish the Underwriter with conformed copies of the above opinions, certificates, letters and documents as you reasonably request. If any of the conditions specified in this Section 6 shall not have been rated “AA+” fulfilled in all material respects when and as provided in this Agreement, or, if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by S&Pthe Underwriter. Notice of such cancellation shall be given to Alliance Bancorp and the Company in writing, “AA+” or by Fitchtelephone or telegraph confirmed in writing. If the Underwriter terminates as a result of this provision, “AA (high)” by DBRS Alliance Bancorp and “Aa1” by Moody’s. The Class M-2 Certificates the Company shall have been rated “AA” by S&Preimburse the Underwriter for all reasonable out of pocket expenses, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.including fees of counsel.
Appears in 1 contract
Sources: Underwriting Agreement (Alliance Bancorp Trust 2007-Oa1)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Stock shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, has been filed in the manner and within the time period required by Rule 424(b); and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; the Company has paid the fees required by the Commission relating to the Stock within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused W▇▇▇▇▇ ▇▇▇▇▇▇ P▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and D▇▇▇ & ▇▇▇▇ LLP shall LLP, counsel for the Company, to have furnished to the Underwriter opinionstheir opinion, dated the Closing DateDate and addressed to the Underwriter, substantially each in form and substance satisfactory to the Underwriter, to the effect set forth in Exhibit A.B hereto.
(bc) The Depositor Underwriter shall have received from Sidley Austin LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Stock, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice President principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement Statement, the Prospectus, the Disclosure Package and the Prospectus any supplements or amendments thereto, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been instituted or, to his the Company’s knowledge, threatened;
(iii) the Company has not received any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and
(iiiiv) Nothing has come to his attention that would lead him to believe that since the Registration Statement, as date of the Closing Datemost recent financial statements included or incorporated by reference in the Prospectus (exclusive of any supplement thereto), contains any untrue statement of a there has been no material fact adverse change in the condition (financial or omits to state any material fact required to be stated therein otherwise), earnings, business, properties or necessary to make the statements therein not misleading, or that the Prospectus, as prospects of the Closing DateCompany and its subsidiaries, contains any untrue statement of taken as a material fact whole, whether or omits to state a material fact required to be stated therein or necessary to make the statements therein, not arising from transactions in the light ordinary course of business or otherwise, except as set forth in or contemplated in the circumstances under which they were made, not misleadingDisclosure Package and the Prospectus (exclusive of any supplement thereto).
(ce) Deloitte & Touche LLP will The Company shall have furnished to the Underwriter a letterthe opinion or opinions of S▇▇▇▇▇ ▇. ▇▇▇▇▇, the Company’s General Counsel (or such other in-house legal officer or officers acceptable to the Underwriter), signed by the General Counsel or such counsel or counsels, dated the Closing Date and addressed to the Underwriter, to the effect set forth in Exhibit C hereto.
(f) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriter, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to the Underwriter), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Underwriter, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the effect that they financial statements and certain financial information contained in the Base Prospectus, the Registration Statement and the Prospectus.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any supplement thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have performed certain been (i) any change or decrease specified procedures in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a result whole, whether or not arising from transactions in the ordinary course of which they have determined that such information business or otherwise, except as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in or contemplated in the Definitive Free Writing Prospectus Disclosure Package and the Prospectus Supplement under (exclusive of any supplement thereto) the caption “The Initial Mortgage Loans” effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and elsewhere therein agrees adverse as to make it impractical or inadvisable to proceed with the accounting records offering, sale or delivery of the Depositor and, where applicableStock as contemplated by the Registration Statement (exclusive of any amendment thereof), the Mortgage Loan files Disclosure Package (exclusive of any supplement thereto) and the Depositor, excluding Prospectus (exclusive of any questions of legal interpretationsupplement thereto).
(dh) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates New York Stock Exchange shall have been rated “AAA” by Standard & Poor’sapproved the Stock for listing, a division subject only to official notice of issuance.
(j) The ▇▇▇▇▇▇Lock-▇▇▇▇ CompaniesUp Agreements between the Underwriter and the officers of the Company set forth on Schedule II, Inc. (“S&P”)delivered to the Underwriter on or before the date of this Agreement, “AAA” by Fitch Ratingsshall be in full force and effect on the Closing Date. All opinions, Inc. (“Fitch”)letters, “AAA” by Dominion Bond Rating Service (“DBRS”) evidence and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates certificates mentioned above or elsewhere in this Agreement shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS be deemed to be in compliance with the provisions hereof only if they are in form and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.substance reasonably satisfactory to counsel for the Underwriter.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriter's obligation to purchase the Certificates shall be subject to the accuracy in all respects following conditions:
6.1 No stop order suspending the effectiveness of the representations Registration Statement shall be in effect, and warranties on the part of the Depositor contained herein as of the date hereof and the Closing Dateno proceedings for that purpose shall be pending or, to the accuracy knowledge of the statements Company, threatened by the Commission; and the Prospectus Supplement shall have been filed or transmitted for filing, by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the Act.
6.2 Since __________, 200_ there shall have been no material adverse change (not in the ordinary course of business) in the condition of the Depositor made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:Company.
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP 6.3 The Company shall have furnished delivered to the Underwriter opinionsyou a certificate, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, a Senior Vice President or any a Vice President, dated President of the Closing Date, Company to the effect that the signer of such certificate has carefully examined this Agreement, the Registration Statement Prospectus, the Pooling and the Prospectus Servicing Agreement and various other closing documents, and that, to the best of his or her knowledge after reasonable investigation:
(ia) The the representations and warranties of the Depositor Company in this Agreement and in the Pooling and Servicing Agreement are true and correct in all material respects on and as of respects; and
(b) the Closing Date with the same effect as if made on the Closing DateCompany has, and the Depositor has in all material respects, complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;.
(ii) No stop order suspending 6.4 You shall have received the effectiveness opinions of Thacher Proffitt & Wood, special counsel for the Registration Statement has been issued Company, dated the C▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ sub▇▇▇▇tially to the effect set forth in Exhibit A and no proceedings Exhibit B.
6.5 You shall have received from counsel for that purpose have been instituted orthe Underwriter, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of an opinion dated the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, Date in form and substance satisfactory to the Underwriter.
6.6 The Underwriter shall have received from certified public accountants, a letter dated the date hereof and satisfactory in form and substance to the Underwriter and the Underwriter's counsel, to the effect that they have performed certain specified procedures procedures, all of which have been agreed to by the Underwriter, as a result of which they have determined that such certain information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial captions "Description of the Mortgage Loans” Pool", "Pooling and elsewhere therein Servicing Agreement", "Description of the Certificates" and "Certain Yield and Prepayment Considerations" agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, Company excluding any questions of legal interpretation.
(d) 6.7 The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “"AAA” " by [each of] [Standard & Poor’s's Ratings Services] and [Fitch Ratings] and "Aaa" by [Moody's Investors Service, a division Inc.].
6.8 You shall have recei▇▇▇ ▇▇▇ opinion of The [Trustee's Counsel], dated the Closing Date, substantially to the effect set forth in Exhibit C.
6.9 You shall have received from Thacher Proffitt & Wood LLP, special counsel to the Company, and from ▇▇-▇▇▇▇▇ ▇▇▇▇▇▇-l t▇ ▇▇e Company, reliance letters with respect to any opinions delivered to [Standard & Poor's Ratings Services] and [Fitch Ratings] and [Moody's Investors Service, Inc.]. The Company will furnish ▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Serviceth conformed copies of the above opinions, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&Pcertificates, “AA+” by Fitch, “AA (high)” by DBRS letters and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.documents as you reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Quick Loan Funding Mortgage Acceptance CORP)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Notes as provided herein on the Closing Date shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof 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 Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates furnished pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished For the period from and after effectiveness of this Agreement and prior to the Underwriter opinions, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for that such purpose shall have been instituted or, to his the Company’s knowledge, threatenedthreatened by the Commission, and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) under the Securities Act objecting to use of the automatic shelf registration statement form (unless the Notes are duly registered in the manner contemplated by Rule 401(g)(2) to the satisfaction of the Underwriter prior to the Closing Date);
(ii) the Company shall have filed any Preliminary Prospectus and the Prospectus with the Commission (including the information required by Rule 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430B, and such post-effective amendment shall have become effective (if not automatically effective under the rules of the Commission);
(iii) the Final Term Sheet, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule or, to the extent applicable, under Rule 164(b); and
(iiiiv) Nothing has come to his attention that would lead him to believe that all requests by the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such Commission for additional information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division complied with to the reasonable satisfaction of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.the Underwriter.
Appears in 1 contract
Sources: Underwriting Agreement (Helix Energy Solutions Group Inc)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase offer the Certificates Shares for sale on a best efforts basis pursuant hereto shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof hereof, as of the date of each Final Prospectus, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the first time of purchase occurring hereunder (including the filing of any document incorporated by reference therein) and the Closing Dateas of each time of purchase occurring hereunder, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened; and any Final Prospectus shall have been filed with the Commission within the time period prescribed by the Commission.
(b) The Company shall have furnished to the Underwriter the opinion of White & Case LLP, counsel for the Company, dated the first time of purchase occurring hereunder substantially in the form attached hereto as Exhibit A.
(c) The Company shall have furnished to the Underwriter the opinion of White & Case LLP, counsel for the Company, dated the first time of purchase occurring hereunder, as to certain intellectual property matters.
(d) The Representatives shall have received from counsel for the Underwriter, such opinion or opinions, dated the Closing Datefirst time of purchase occurring hereunder, substantially with respect to the effect set forth in Exhibit A.issuance and sale of the Shares, the Registration Statement, the Final Prospectus and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(be) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, President and Chief Executive Officer or a Senior Vice President and the principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing Datefirst time of purchase occurring hereunder, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, the Final Prospectus and thatthis Agreement and that to the best of their knowledge:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date first time of purchase occurring hereunder with the same effect as if made on the Closing Date, such date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datefirst time of purchase occurring hereunder;
(ii) No no stop order suspending the effectiveness of the Registration Statement Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to his knowledge, or threatened; and
(iii) Nothing has come to his attention that would lead him to believe that since the Registration Statement, as date of the Closing Date, contains any untrue statement of a material fact most recent financial statements included or omits to state any material fact required to be stated therein or necessary to make incorporated by reference in the statements therein not misleading, or that the Final Prospectus, as there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Closing DateCompany and its Subsidiaries, contains any untrue statement of a material fact whether or omits to state a material fact required to be stated therein or necessary to make the statements therein, not arising from transactions in the light ordinary course of business, except as set forth in or contemplated in the circumstances under which they were made, not misleadingFinal Prospectus.
(cf) Deloitte At the first time of purchase occurring hereunder, Ernst & Touche Young LLP will shall have furnished to the Underwriter a letterletter or letters (which may refer to letters previously delivered to the Underwriter, either as a representative of other underwriters or as an underwriter represented by another representative), dated as of the Closing Date, in form and substance satisfactory to the Underwriter, .
(g) Subsequent to the effect that they have performed certain specified procedures respective dates as a result of which they information is given in the Registration Statement and the Final Prospectus, there shall not have determined that been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business or properties of the Company and its subsidiaries the effect of which, in any case referred to in clause (i) or (ii) above, is, in the reasonable judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or the delivery of the Shares as contemplated by the Registration Statement and the Final Prospectus.
(h) Prior to the first time of purchase occurring hereunder, the Company shall have furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationrequest.
(di) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates [Intentionally Omitted] If any of the conditions specified in this Section 6 shall not have been rated “AAA” fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by Standard & Poor’s, a division the Underwriter. Notice of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” such cancellation shall be given to the Company in writing or by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.telephone or telegraph confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (Aphton Corp)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company and the Selling Stockholder contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Depositor Company and the Selling Stockholder made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company and the Selling Stockholder of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriter their opinion and negative assurance letter, dated the Closing Date and addressed to the Underwriter, in a form reasonably acceptable to the Underwriter.
(c) The Chief Financial Officer of the Company shall have delivered to the Underwriter, on each of the date hereof and on the Closing Date, a certificate in a form acceptable to the Underwriter.
(d) The Underwriter shall have received from D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP LLP, counsel for the Underwriter, such opinion and negative assurance letter, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company and the Selling Stockholder shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Selling Stockholder shall have requested and caused Walkers (Cayman) LLP, counsel for the Selling Stockholder, to have furnished to the Underwriter opinions, their opinion dated the Closing Date, substantially Date and addressed to the effect set forth Underwriter, in Exhibit A.a form reasonably acceptable to the Underwriter.
(bf) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice President or any Vice PresidentChief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, the Disclosure Package, the Prospectus and any amendment or supplement thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has come been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(g) The Company shall have requested and caused Deloitte & Touche LLP to his attention that would lead him have furnished to believe that the Registration StatementUnderwriter, as of at the Execution Time and at the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingletters, or that the Prospectus, dated respectively as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated Execution Time and as of the Closing Date, in form and substance satisfactory to the Underwriter, containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters.
(h) Subsequent to the effect that they Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of supplement thereto), there shall not have performed certain been (i) any change or decrease specified procedures in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a result whole, whether or not arising from transactions in the ordinary course of which they business, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) Prior to the Closing Date, the Company and the Selling Stockholder shall have determined that furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request request. If any of an accountingthe conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, financial or statistical nature set forth if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Definitive Free Writing Prospectus Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company and the Prospectus Supplement under Selling Stockholder in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records office of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard D▇▇▇▇ ▇▇▇▇ & Poor’s, a division of The W▇▇▇▇▇▇-▇, LLP, counsel for the Underwriter, at 1▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇ ▇▇▇▇▇’▇ Investors Service▇▇▇▇, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P▇▇▇▇▇ ▇▇▇, “AA+” by Fitch▇▇▇▇▇ ▇▇▇▇, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.▇▇ ▇▇▇▇▇ on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Opendoor Technologies Inc.)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter to purchase accept delivery of and pay for the Certificates Bonds on the Closing Date shall be subject subject, at the option of the Underwriter, to the accuracy in all material respects of the representations and warranties on the part of the Depositor Authority contained herein as of the date hereof and the Closing Dateherein, to the accuracy in all material respects of the statements of the Depositor officers and other officials of the Authority made in any Officers’ certificates or other documents furnished pursuant to the provisions hereof, to the performance by the Depositor Authority of its obligations to be performed hereunder and at or prior to the Closing Date and, to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated A. At the Closing Date, substantially the Authority Documents, the Authority Resolution, the Districts Resolutions, the Local Obligations Security Documents, the Local Obligations Purchase Agreement, and the Local Obligations shall be in full force and effect, and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the effect set forth in Exhibit A.
(b) The Depositor Underwriter, and there shall have furnished to been taken in connection therewith, with the Underwriter a certificate issuance of the DepositorBonds and with the Local Obligations, signed and with the transactions contemplated thereby, and by this Purchase Agreement, all such actions as, in the Presidentopinion of Bond Counsel, Senior Vice President or any Vice President, dated shall be necessary and appropriate.
B. At the Closing Date, except as described in the Preliminary Official Statement, the Authority shall not be, in any respect material to the effect that transactions referred to herein or contemplated hereby, in breach of or in default under, any law or administrative rule or regulation of the signer State of such certificate has carefully examined California, the Registration Statement United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Authority is a party or is otherwise subject or bound, and the Prospectus performance by the Authority of its obligations under the Authority Documents and that:
(i) The representations the Authority Resolution, and warranties compliance with the provisions of each thereof, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the Depositor State of California, the United States of America, or of any department, division, agency or instrumentality of either thereof, or under any applicable court or administrative decree or order, or under any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Authority is a party or is otherwise subject or bound, in this Agreement are any manner that would materially and adversely affect the performance by the Authority of its obligations under the Authority Documents or the Authority Resolution.
C. The information contained in the Official Statement (other than statements pertaining to DTC or the book-entry system, the Reserve Policy, or any information provided by the Underwriter, as to which no view is expressed), will be, as of the Closing Date and as of the date of any supplement or amendment thereto pursuant hereto, true and correct in all material respects on and will not, as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Datedate of any supplement or amendment thereto, contains contain any untrue statement of a material fact or omits omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading.
D. Between the date hereof and the Closing Date, the market price or marketability, at the initial offering prices set forth on the inside cover page of the Official Statement, or the ability of the Underwriter to enforce contracts for the sale of the Bonds, shall not have been materially adversely affected, in the reasonable judgment of the Underwriter (evidenced by a written notice to the Authority terminating the obligation of the Underwriter to accept delivery of and pay for the Bonds), by reason of any of the following:
1. Legislation introduced in or enacted (or resolution passed) by the Congress of the United States of America or recommended to the Congress by the President of the United States, the Department of the Treasury, the Internal Revenue Service, or any member of Congress, or favorably reported for passage to either House of Congress by any committee of such House to which such legislation had been referred for consideration, or a decision rendered by a court established under Article III of the Constitution of the United States of America or by the Tax Court of the United States of America, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Treasury Department of the United States of America or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by any owners of the Bonds beyond the extent to which such interest is subject to taxation as of the date hereof;
2. Legislation introduced in or enacted (or resolution passed) by the Congress or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed), press release or other form of notice issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds or the Local Obligations, including any or all underlying arrangements, are not exempt from registration under or other requirements of the Securities Act of 1933, as amended, or that the ProspectusIndenture or the Local Obligations Security Documents are not exempt from qualification under or other requirements of the Trust Indenture Act of 1939, as amended, or that the issuance, offering or sale of obligations of the Closing Dategeneral character of the Bonds or the Local Obligations, including any or all underlying arrangements, as contemplated hereby or by the Official Statement or otherwise is or would be in violation of the federal securities laws as amended and then in effect;
3. Any state Blue Sky or securities commission or other governmental agency or body shall have withheld registration, exemption or clearance of the offering of the Bonds as described herein, or issued a stop order or similar ruling relating thereto;
4. A general suspension of trading on the New York Stock Exchange or other major exchange shall be in force, or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on any such exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction;
5. The introduction, proposal or enactment of any amendment to the Federal or California Constitution or any action by any Federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the Authority, the Community Facilities Districts or their property, income, securities (or interest thereon), the validity or enforceability of Special Taxes, or the ability of the Authority to purchase the Local Obligations;
6. Any event occurring, or information becoming known which, in the judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Preliminary Official Statement or in the Official Statement, or has the effect that the Preliminary Official Statement or the Official Statement contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
7. There shall have occurred any materially adverse change in the affairs or financial condition of the Authority or the Community Facilities Districts;
8. Any national securities exchange, the Comptroller of the Currency, or any other governmental authority, shall impose as to the Bonds, the Local Obligations or obligations of the general character of the Bonds or the Local Obligations, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, the Underwriter;
9. There shall have occurred (1) an outbreak or escalation of hostilities or the declaration by the United States of a national emergency or war or (2) any other calamity or crisis in the financial markets of the United States or elsewhere or the escalation of such calamity or crisis;
10. The purchase of and payment for the Bonds by the Underwriter, or the resale of the Bonds by the Underwriter, on the terms and conditions herein provided shall be prohibited by any applicable law, governmental authority, board, agency or commission;
11. Any new restriction on transactions in securities materially affecting the market for securities (including the imposition of any limitation or interest rates) or the extension of credit by, or a charge to the net capital requirements of credit by, or a charge to net capital requirements of, underwriters shall have been established by the New York Stock Exchange, the SEC, any other federal or State agency or the Congress of the United States of America, or by Executive Order;
12. A decision by a court of the United States of America shall be rendered, or a stop order, release, regulation or no-action letter by or on behalf of the SEC or any other governmental agency having jurisdiction of the subject matter shall have been issued or made, to the effect that the issuance, offering or sale of the Bonds, including the underlying obligations as contemplated by this Purchase Agreement or by the Official Statement, or any document relating to the issuance, offering or sale of the Bonds, is or would be in violation of any provision of the federal securities laws at the Closing Date, including Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of 1939, as amended;
13. The withdrawal or downgrading or the placing on credit watch with negative outlook of any rating on the Bonds by a national rating agency;
14. A material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred;
15. The commencement of any Action, as set forth in Section 2(F) hereof;
16. There shall have occurred any national or international calamity or crisis in the financial markets or otherwise of the United States or elsewhere; or
17. Any proceeding shall have been commenced or be threatened in writing by the Securities and Exchange Commission against the Community Facilities Districts or the Authority.
(c) Deloitte & Touche LLP will have furnished E. At or prior to the Closing Date, the Underwriter shall have received a lettercounterpart original or certified copy of the following documents, in each case satisfactory in form and substance to the Underwriter:
1. The Official Statement, executed on behalf of the Authority by its Executive Director or other authorized officer;
2. The Authority Documents, duly executed and delivered by all parties thereto;
3. The Authority Resolution, together with a certificate of the Secretary of the Authority, dated as of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures such resolution is a true, correct and complete copy of the resolution duly adopted by the Board of Directors of the Authority;
4. The Districts Resolutions, together with a certificate dated as a result of which they have determined the Closing Date of the City Clerk to the effect that such information the Districts Resolutions are true, correct and complete copies of the resolutions duly adopted by the City Council, acting as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records legislative body of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.Community Facilities Districts;
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase borrow the Certificates Underwritten Securities and pay the Loan Fee as provided herein shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(ai) ▇If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and 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 threatened.
(ii) If, at or subsequent to the Execution time it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective, the registration statement or such post-effective amendment shall have become effective no later than such date and time as consented to in writing by you, and all filings, if any, required by Rules 424 and 430A Under the Act shall have been timely made.
(b) The Company shall have requested and caused Irell & M▇▇▇▇▇▇ LLP, counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, covering such matters as are typically provided in opinions delivered in connection with underwritten equity offerings, in form and substance reasonably satisfactory to you.
(c) C▇▇▇, Raywid & B▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP L.L.P., special regulatory counsel to the Company, shall have furnished to the Underwriter opinionsyou their written opinion, dated the Closing Date, substantially in form and substance reasonably satisfactory to you, to the effect that:
(i) The issue and sale of the Underwritten Securities and the compliance by the Company with the Share Lending Agreement and the consummation of the transactions herein and therein contemplated do not and will not contravene the Cable Acts or any order, rule or regulation of the FCC to which the Company or any of its subsidiaries or any of their property is subject; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid. To the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(ii) To the best of such counsel’s knowledge, no consent, approval, authorization or order of, or registration, qualification or filing with the FCC is required under the Cable Acts or any order, rule or regulation of the FCC in connection with the issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of this Agreement and the Share Lending Agreement and the consummation of the transactions herein and therein contemplated; however, to the extent that any document purports to grant a security interest in licenses issued by the FCC, the FCC has taken the position that security interests in FCC licenses are not valid; to the extent that any party seeks to exercise control of an FCC license in the event of a default or for any other reason, it may be necessary to obtain prior FCC consent;
(iii) The statements set forth in Exhibit A.the Prospectus under the caption “Regulation and Legislation” and under the caption “Risk Factors” under the subheading “Risks relating to regulatory and legislative matters,” insofar as they constitute summaries of laws referred to therein, concerning the Cable Acts and the published rules, regulations and policies promulgated by the FCC thereunder, fairly summarize the matters described therein;
(biv) To such counsel’s knowledge based solely upon its review of publicly available records of the FCC and operational information provided by the Company’s and the Company’s subsidiaries’ management, the Company and its subsidiaries hold all FCC licenses for cable antenna relay services necessary to conduct the business of the Company and its subsidiaries as currently conducted, except to the extent the failure to hold such FCC licenses would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect; and
(v) Except as disclosed in the Prospectus and except with respect to rate regulation matters, and general rulemakings and similar matters relating generally to the cable television, industry, to such counsel’s knowledge, based solely upon its review of the publicly available records of the FCC and upon inquiry of the Company’s and its subsidiaries’ management, during the time the cable systems of the Company and its subsidiaries have been owned by the Company and its subsidiaries (A) there has been no adverse FCC judgment, order or decree issued by the FCC relating to the ongoing operations of any of the Company or one of its subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect; and (B) there are no actions, suits, proceedings, inquiries or investigations by or before the FCC pending or threatened in writing against or specifically affecting the Company or any of its subsidiaries or any cable system of the Company or any of its subsidiaries which could, individually or in the aggregate, be reasonably expected to result in a Material Adverse Effect;
(d) The Depositor General Counsel or Acting General Counsel of the Company, shall have furnished to you his written opinion, dated as of the Closing Date, in form and substance satisfactory to you, to the effect that:
(i) Each subsidiary of the Company listed on a schedule attached to such counsel’s opinion (the “Charter Subsidiaries”) has been duly incorporated or formed, as the case may be, and is validly existing as a corporation, limited liability company or partnership, as the case may be, in good standing under the laws of its jurisdiction of incorporation or formation; and all the issued shares of capital stock, limited liability company interests or partnership interests, as the case may be, of each Charter Subsidiary are set forth on the books and records of the Company and, except for those Charter Subsidiaries that are general partners, assuming receipt of requisite consideration therefor, are fully paid and nonassessable (in the case of corporate entities) and not subject to additional capital contributions (in the case of limited liability company entities and limited partnerships); and, except as otherwise set forth in the Prospectus, and except for liens not prohibited under the credit agreements listed on such schedule, all outstanding shares of capital stock of each of the Charter Subsidiaries are owned by the Company, either directly or indirectly or through wholly-owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(ii) Each of the Company and the Charter Subsidiaries has been duly qualified as a foreign corporation, partnership or limited liability company, as the case may be, for the transaction of business and is in good standing under the laws of each jurisdiction set forth in a schedule to such counsel’s opinion;
(iii) To the best of such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company, or any of the Company’s subsidiaries is party or of which any property of the Company or any of the Company’s subsidiaries is the subject, of a character required to be disclosed in the Registration Statement, which is not so disclosed, except for such proceedings which are not likely to have, individually or in the aggregate, a Material Adverse Effect; and, to the best of such counsel’s knowledge and other than as set forth in the Prospectus, no such proceedings are overtly threatened by governmental authorities or by others; and
(iv) The issue and sale of the Underwritten Securities and the compliance by the Company with all the provisions of the Share Lending Agreement and the consummation of the transactions therein contemplated will not result in a violation of the provisions of the certificate of incorporation or by-laws, or certificate of formation or limited liability company agreement or partnership agreement, as the case may be, of any of the Charter Subsidiaries.
(e) On each Effective Date and also on the Closing Date, KPMG LLP shall have furnished to you a “comfort” letter or letters of the type customarily provided in connection with underwritten equity offerings, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you;
(f) The Underwriter shall have received from Weil, Gotshal & M▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions as are customarily provided by underwriters’ counsel in connection with the registration of equity securities in underwritten offerings on Form S-1, dated the Closing Date and addressed to the Underwriter, with respect to the issuance and sale of the Underwritten Securities, the Registration Statement and the Prospectus (together with any supplement thereto) and other related matters as the Underwriter may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice Chairman of the Board or the President and the principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, the Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has come been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto).
(h) Subsequent to his attention that would lead him to believe that the Execution Time or, if earlier, the dates as of which information is given in the Registration StatementStatement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Underwritten Securities as contemplated by the Registration Statement (exclusive of any amendment thereto) and the Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will Company shall have furnished to the Underwriter a lettersuch further information, dated as of the Closing Date, in form certificates and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationrequest.
(dj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as used for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Underwritten Securities shall have been rated “AAA” listed and admitted and authorized for trading on the Nasdaq National Market, and satisfactory evidence of such actions shall have been provided to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by Standard the Underwriter. Notice of such cancelation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Weil, Gotshal & Poor’s, a division of The M▇▇▇▇▇▇-▇▇▇▇ CompaniesLLP, Inc. (“S&P”)counsel for the Underwriter, “AAA” by Fitch Ratingsat [ ], Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Charter Communications Inc /Mo/)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter Underwriters to purchase the Certificates Securities shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company and the Guarantors contained herein as of the date hereof Execution Time and as of the Closing Date, to the accuracy of the statements of the Depositor Company and the Guarantors made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company and the Guarantors of its their respective obligations hereunder and to the following additional conditions:
(a) ▇The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b) and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Representatives shall have received an opinion, dated the Closing Date, of Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel for the Company, and of J▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, Executive Vice President, General Counsel and Secretary of the Company, in form and substance satisfactory to counsel for the Underwriters.
(c) The Representatives shall have received from Cravath, Swaine & M▇▇▇▇ LLP LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Securities, the Registration Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Representatives shall have received from E▇▇▇▇▇▇ B▇▇▇▇▇ & Green, P.C., special regulatory counsel for the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the Underwriters, with respect to health regulatory matters in connection with the offer and sale of the Securities.
(e) The Company shall have furnished to the Underwriter opinions, dated the Closing Date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter Representatives a certificate of the DepositorCompany, signed by the President, Senior a President or Vice President of the Company and the principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, as well as each electronic road show used in connection with the Prospectus offering of the Securities, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company and the Guarantors in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company and each of the Guarantors has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s or the Guarantors’ knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that since the Registration Statement, as date of the Closing Datemost recent financial statements included in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), contains any untrue statement of a there has been no material fact adverse change in the condition (financial or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingotherwise), or that the Prospectusbusiness prospects, as earnings, business affairs of the Closing DateCompany and its subsidiaries, contains any untrue statement of considered as a material fact one enterprise, whether or omits to state a material fact required to be stated therein or necessary to make the statements therein, not arising in the light ordinary course of business, except as set forth in or contemplated in the circumstances under which they were made, not misleadingDisclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(cf) Deloitte & Touche LLP will At the time of execution of this Agreement, the Representatives shall have furnished to the Underwriter received from PricewaterhouseCoopers LLP, a letterletter dated such date, dated as of the Closing Date, which in form and substance satisfactory to the UnderwriterRepresentatives and PricewaterhouseCoopers LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Underwriters with respect to the financial statements and certain financial information contained in the Disclosure Package.
(g) At the Closing Date, the Representatives shall have received from PricewaterhouseCoopers LLP, a letter dated such date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section 6, except that the specified dated referred in such letter to shall be a date not more than three Business Days prior to the Closing Date.
(h) Subsequent to the date of this Agreement or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have performed certain been (i) any change or decrease specified procedures in the letter or letters referred to in paragraphs (f) and (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a result whole, whether or not arising from transactions in the ordinary course of which they have determined that such information business, except as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in or contemplated in the Definitive Free Writing Prospectus Disclosure Package and the Final Prospectus Supplement under (exclusive of any amendment or supplement thereto) the caption “The Initial Mortgage Loans” effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and elsewhere therein agrees adverse as to make it impractical or inadvisable to proceed with the accounting records offering or delivery of the Depositor and, where applicableSecurities as contemplated by the Registration Statement (exclusive of any amendment thereof), the Mortgage Loan files Disclosure Package and the Final Prospectus (exclusive of the Depositor, excluding any questions of legal interpretationamendment or supplement thereto).
(di) The DepositorSubsequent to the Execution Time, (i) there shall not have been any decrease in the rating of any of the Company’s Home Equity Mortgage Pass-Through Certificates Series 2006-4debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change, Class A-1and (ii) no such organization shall have publicly announced that it has under surveillance or review, Class A-2 or has changed its outlook with respect to, its rating of the Securities or of any of the Company's debt securities (other than an announcement with positive implications of possible upgrading).
(j) Substantially concurrently with the Closing Date, all of the 2014 Notes tendered in the Tender Offer on or prior to the Consent Payment Deadline (as such term is defined in the Offer to Purchase), and Class A-3 Certificates the related consents, shall have been rated “AAA” accepted for purchase by Standard the Company, on the terms and conditions described in the Offer to Purchase and in conformity with the description thereof in the Disclosure Package and the Final Prospectus (without giving effect to any waivers of conditions thereto not consented to by the Representatives).
(k) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, this Agreement and all obligations of the Underwriters, the Company and the Guarantors, except as provided in Section 7 and except that Sections 1, 5(k), 8 and 11 to 20 shall survive any such termination and remain in full force and effect, hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Cravath, Swaine & Poor’sM▇▇▇▇ LLP, a division of The counsel for the Underwriter, at 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Companies▇, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any Settlement Date pursuant to Section 3 hereof, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriter agrees in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 PM New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the Business Day following the day on which the public offering price was determined, if such determination occurred after 3:00 PM New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Final Prospectus, and any such supplement, will be filed in the manner and within the time period required by Rule 424(b); and 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 overtly threatened.
(b) The Company shall have requested and caused C▇▇▇▇▇ Godward LLP, counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, in substantially the form set forth in Exhibit B.
(c) The Company shall have requested and caused D▇▇▇▇ ▇▇▇▇▇▇ LLP, intellectual property counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, to the effect that, to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its property of a character required to be disclosed in the Registration Statement, which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Final Prospectus under the headings “Risk Factors” and “Business—Product Discovery and Development Collaborations, —License Arrangements” and —Patents and Proprietary Rights,” insofar as such statements summarize intellectual property legal matters, documents or proceedings discussed therein, are, are accurate and fair summaries of such legal matters, documents or proceedings.
(d) The Company shall have requested and caused H▇▇▇▇, P▇▇▇▇▇ & M▇▇▇▇▇▇▇, P.C., U.S. Food and Drug Administration (FDA) regulatory counsel for the Company, to have furnished to the Underwriter their opinion, dated the Closing Date and addressed to the Underwriter, to the effect that, to the knowledge of such counsel, there is no lawsuit or regulatory proceeding, pending or threatened, brought by or before any court or governmental agency, authority or body or any arbitrator, involving the Company or its property, which is not adequately disclosed in the Final Prospectus, and there is no FDA-related franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included in the Final Prospectus under the headings “Risk Factors—Risks Related to Our Business—If we or our collaborators are unable to obtain and maintain the GRAS determinations or regulatory approvals required before any flavors, flavor enhancers or taste modulators can be incorporated into products that are sold, we would be unable to commercialize our flavors, flavor enhancers and flavor modulators and our business would be adversely affected,” “Even if we or our collaborators receive a GRAS determination or regulatory approval and incorporate our flavors, flavor enhancers or taste modulators into products, those products may never be commercially successful” and “We will rely on third parties to manufacture our flavors and flavor enhancers on a commercial scale,” insofar as such statements summarize applicable provisions of the Federal Food, Drug, and Cosmetic Act, as amended, and the regulations promulgated thereunder, are accurate and fair summaries of such Act and regulations.
(e) The Underwriter shall have received from C▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP shall have furnished to & H▇▇▇▇▇▇▇ LLP, counsel for the Underwriter Underwriter, such opinion or opinions, dated the Closing Date, substantially Date and addressed to the effect set forth in Exhibit A.Underwriter, with respect to the issuance and sale of the Securities, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(bf) The Depositor Company shall have furnished to the Underwriter a certificate of the DepositorCompany, signed by the President, Senior Vice Chairman of the Board or the President and the principal financial or any Vice Presidentaccounting officer of the Company, dated the Closing Date, to the effect that the signer signers of such certificate has carefully have examined the Registration Statement Statement, the Final Prospectus, any supplements to the Final Prospectus and the Prospectus this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, Date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Final Prospectus (exclusive of any supplement thereto), there has come been no Material Adverse Effect, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto).
(g) The Company shall have requested and caused Ernst & Young LLP to his attention that would lead him have furnished to believe that the Registration StatementUnderwriter, as within one day of the Execution Time and at the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingletters, or that the Prospectus, dated respectively as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Underwriter, in substantially the form set forth in Exhibit C.
(h) Subsequent to the effect that they Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have performed certain been (i) any change or decrease specified procedures in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company taken as a result whole, whether or not arising from transactions in the ordinary course of which they business, except as set forth in or contemplated in the Final Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Underwriter, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, the Company shall have determined that furnished to the Underwriter such information further information, certificates and documents as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationrequest.
(dj) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates Securities shall have been rated “AAA” listed and admitted and authorized for trading on the Nasdaq National Market, and reasonably satisfactory evidence of such actions shall have been provided to the Underwriter.
(k) At the Execution Time, the Company shall have furnished to the Underwriter a letter substantially in the form of Exhibit A hereto (with such changes as may be approved by Standard & Poor’scounsel to the Underwriter) from each executive officer, a division each addressed to the Underwriter. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriter and its counsel, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of C▇▇▇▇▇ ▇▇▇▇▇▇-▇▇ ▇▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by & H▇▇▇▇▇’▇▇ Investors ServiceLLP, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&Pcounsel for the Underwriter, “AA+” by Fitchat O▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P▇▇▇ ▇▇▇▇, “AA+” by Fitch▇▇▇ ▇▇▇▇ ▇▇▇▇▇, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&PAttention: D▇▇▇▇ ▇▇▇▇▇, “AA-” by FitchEsq., “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.on the Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Senomyx Inc)
Conditions to the Obligations of the Underwriter. The obligations obligation of the Underwriter hereunder to purchase the Certificates shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof hereof, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date, as of the date the Prospectus Supplement or any supplement thereto is filed with the Commission prior to the Closing Date and as of the Closing Date, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates delivered pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to satisfaction, as of the Closing Date, of the following additional conditions:
(a) ▇▇▇No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and not withdrawn and no proceedings for that purpose shall have been instituted or, to the Company's knowledge, threatened; and the Prospectus Supplement shall have been filed or transmitted for filing with the Commission in accordance with Rule 424 under the ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have furnished to the Underwriter opinions, dated the Closing Date, substantially to the effect set forth in Exhibit A..
(b) The Depositor Company shall have furnished delivered to the Underwriter a certificate of the DepositorCompany, signed by an authorized officer of the President, Senior Vice President or any Vice President, Company and dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
: (i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on at and as of the Closing Date with the same effect as if made on the Closing Date, ; and (ii) the Depositor Company has in all material respects complied with all the agreements and satisfied all the conditions on its part that are required hereby to be performed or satisfied at or prior to the Closing Date;.
(c) The Underwriter shall have received with respect to the Company a good standing certificate from the Secretary of State of the State of Delaware, dated not earlier than 30 days prior to the Closing Date.
(d) The Underwriter shall have received from the Secretary or an assistant secretary of the Company, in his individual capacity, a certificate, dated the Closing Date, to the effect that: (i) each individual who, as an officer or representative of the Company, signed this Agreement, the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements or any other document or certificate delivered on or before the Closing Date in connection with the transactions contemplated herein, in the Pooling and Servicing Agreement or in the Mortgage Loan Purchase Agreements, was at the respective times of such signing and delivery, and is as of the Closing Date, duly elected or appointed, qualified and acting as such officer or representative, and the signatures of such persons appearing on such documents and certificates are their genuine signatures; and (ii) no event (including, without limitation, any act or omission on the part of the Company) has occurred since the date of the good standing certificate referred to in paragraph (c) above which has affected the good standing of the Company under the laws of the State of Delaware. Such certificate shall be accompanied by true and complete copies (certified as such by the Secretary or an assistant secretary of the Company) of the certificate of incorporation and by-laws of the Company, as in effect on the Closing Date, and of the resolutions of the Company and any required shareholder consent relating to the transactions contemplated in this Agreement, the Pooling and Servicing Agreement and the Mortgage Loan Purchase Agreements.
(e) The Underwriter shall have received from Sidley & Austin, special counsel for the Company, a favorable opinion, dated the Closing Date and satisfactory in form and substance to the Underwriter and counsel for the Underwriter, to the effect that:
(i) The Registration Statement and any post-effective amendments thereto have become effective under the 1933 Act.
(ii) No To the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and not withdrawn, and no proceedings for that purpose have been instituted or, to his knowledge, threatened; andor threatened and not terminated.
(iii) Nothing has come The Registration Statement, each post-effective amendment thereto (if any), the Basic Prospectus and the Prospectus Supplement, as of their respective effective or issue dates (other than the financial statements, schedules and other financial and statistical information contained therein or omitted therefrom and other than information incorporated therein by reference, as to his attention that would lead him which such counsel need express no opinion), complied as to believe that form in all material respects with the applicable requirements of the 1933 Act and the rules and regulations of the Commission thereunder.
(iv) To the best knowledge of such counsel, there are no material contracts, indentures or other documents relating to the Certificates of a character required to be described or referred to in the Registration Statement or the Prospectus Supplement or to be filed as exhibits to the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact other than those described or omits referred to state any material fact required to be stated therein or necessary to make the statements therein not misleading, filed or that the Prospectus, incorporated by reference as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingexhibits thereto.
(cv) Deloitte & Touche LLP will have furnished to The Mortgage Loan Purchase Agreements and the Underwriter Pooling and Servicing Agreement each constitute a lettervalid, dated as legal, binding and enforceable agreement of the Closing DateCompany, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, to general principles of equity regardless of whether enforcement is sought in form a proceeding in equity or at law and substance satisfactory to public policy considerations underlying the Underwritersecurities laws, to the effect that they have performed certain specified procedures as a result of which they have determined extent that such information as public policy considerations limit the Underwriter may reasonably request enforceability of an accountingthe provisions of such agreement that purport or are construed to provide indemnification from securities law liabilities.
(vi) The Certificates, financial or statistical nature when duly and validly executed, authenticated and delivered in accordance with the Pooling and Servicing Agreement and paid for in accordance with this Agreement, will be duly and validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement.
(vii) The statements set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial headings "Description of the Offered Certificates" and "Servicing of the Mortgage Loans” " and elsewhere therein agrees with in the accounting records Basic Prospectus under the headings "Description of the Depositor andSecurities", where applicable"Servicing of Mortgage Loans" and "The Trust Agreement", the Mortgage Loan files insofar as such statements purport to summarize certain material provisions of the DepositorCertificates and the Pooling and Servicing Agreement, excluding any questions of legal interpretationare accurate in all material respects.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.
Appears in 1 contract
Sources: Underwriting Agreement (Structured Asset Sec Corp Mort Pass THR Cert Ser 1999-C2)
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates shall be are subject to the accuracy in all respects of condition that the representations and warranties Registration Statement shall remain effective on the part of the Depositor contained herein as of the date hereof and the Closing Date, no stop order with respect to the accuracy effectiveness of the statements Registration Statement shall have been issued under the Securities Act nor any proceedings initiated under Sections 8(d) and 8(e) of the Depositor made in any Officers’ certificates pursuant to the provisions hereofSecurities Act, to the performance by the Depositor of its obligations hereunder and to the following additional conditions:.
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriter shall have received on the Closing Date a certificate, dated the Closing Date, and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true, correct and complete as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, dated the Closing Date, in the form of Exhibit B.
(d) the Underwriter shall have received on the Closing Date an opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have furnished LLP, outside counsel to the Underwriter opinionsCompany, dated the Closing Date, substantially to in the effect set forth in form attached hereto as Exhibit A.C.
(be) The Depositor Underwriter shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in this Agreement are true and correct in all material respects received on and as of the Closing Date with an opinion and letter of O’Melveny & ▇▇▇▇▇ LLP, counsel for the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him to believe that the Registration Statement, as of the Closing Date, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letterUnderwriter, dated as of the Closing Datesuch date, in form and substance satisfactory to the Underwriter.
(f) The Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the effect that they have performed Underwriter, from Ernst & Young LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain specified procedures as a result financial information contained in or incorporated by reference into the Registration Statement, the Time of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Sale Prospectus and the Prospectus Supplement under Prospectus; provided that the caption letter delivered on the Closing Date shall use a “The Initial Mortgage Loanscut-off date” and elsewhere therein agrees with not earlier than the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretationdate hereof.
(dg) The Depositor’s Home Equity Mortgage PassLock-Through Certificates Series 2006-4up Agreements between you and the parties set forth on Schedule II relating to sales and certain other dispositions of shares of Class A Common Stock or certain other securities, Class A-1delivered to you on or before the date hereof, Class A-2 shall be in full force and Class A-3 Certificates effect on the Closing Date.
(h) On or before each of the Closing Date, the Manager and counsel for the Underwriter shall have been rated “AAA” by Standard & Poor’sreceived such information, a division documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
(i) The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall Shares have been rated “AA+” by S&Papproved for listing on the NYSE, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.subject to official notice of issuance.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter under this Agreement to purchase the Certificates Shares on each Closing Date shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor contained Company set forth herein as of the date hereof and hereof, as of the First Closing Date, and if applicable, as of the Second Closing Date, as the case may be, to the accuracy of the statements of the Depositor Company's directors and officers made in any Officers’ certificates pursuant to the provisions hereof, to the performance and compliance by the Depositor Company of its agreements and obligations hereunder hereunder, and to the following additional conditions, except to the extent expressly waived in writing by the Underwriter:
(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP The Registration Statement and all post-effective amendments thereto shall have furnished been declared effective by the Commission not later than 5:30 p.m. Eastern Standard Time on the date of this Agreement, or such later time as shall have been consented to by the Underwriter, and all filings required by Rule 424(b) and Rule 430A under the Securities Act shall have been timely filed with the Commission in compliance with the Rules and Regulations, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been disclosed to the Underwriter opinions, dated the Closing Date, substantially and complied with to the effect set forth in Exhibit A.Underwriter's satisfaction. No stop order suspending the effectiveness of the Registration Statement or any amendment or supplement thereto shall have been issued and no proceeding for that purpose shall have been initiated or shall be pending, or, to the knowledge of the Company, threatened or contemplated by the Commission, and no restraining order, or order of any nature by a federal or state court of competent jurisdiction shall have been issued which would or purports to prevent the issuance of the Shares.
(b) Subsequent to the execution and delivery of this Agreement and prior to each Closing Date, there shall not have occurred any change, or any development involving, or which might reasonably be expected to involve, a prospective change, in the ability of the Company or any Subsidiary to conduct their respective businesses (whether by reason of any court, legislative, other governmental action, order, decree, or otherwise), or in the general affairs, condition (financial and otherwise), business, prospects, properties, management, financial position or earnings, results of operations, or net worth of the Company or any Subsidiary, whether or not arising from transactions in the ordinary course of business that, in the Underwriter's judgment, is material and adverse and makes it, in the Underwriter's judgment, impracticable to market the Shares on the terms and in the manner contemplated by the Prospectus.
(c) The Depositor Underwriter shall have furnished to the Underwriter received on each Closing Date, a certificate of the Depositor, signed by chief executive officer of the President, Senior Vice President or any Vice PresidentCompany, dated as of the First Closing Date or the Second Closing Date, as the case may be, to the effect that the signer of such certificate has carefully examined the Registration Statement and the Prospectus and that:
(i) The representations Registration Statement has been declared effective by the Commission under the Securities Act and warranties of the Depositor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and 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 the Closing Date;
(ii) No no stop order suspending the effectiveness of the Registration Statement has been issued issued, and no proceedings proceeding for that such purpose have been instituted is pending, or, to his knowledgethe knowledge of the respective signatories, threatened; andthreatened or contemplated by the Commission.
(ii) The representations and warranties of the Company set forth in this Agreement are true and correct as of the date of this Agreement and as of the First Closing Date or the Second Closing Date, as the case may be, and the Company has complied with all of the covenants and agreements and satisfied in all respects all of the conditions to be performed or satisfied by it on or prior to each such Closing Date.
(iii) Nothing Except as set forth in the Registration Statement or the Prospectus, since the respective dates of the Registration Statement and Prospectus, neither the Company nor any Subsidiary shall have incurred any liability or obligation, direct or contingent, neither of them shall have entered into any material transaction, there shall not have been any change in the capital stock or other securities of the Company nor any material increase in the short-term or long-term debt of the Company from that set forth or contemplated in the Registration Statement or the Prospectus (or any amendment or supplement thereto).
(iv) Each of the respective signatories of the certificate has come to his attention that would lead him to believe that carefully examined the Registration Statement, as of the Closing DateProspectus, contains and any amendments or supplements thereto, and such documents contain all statements and information required to be made therein, and neither the Registration Statement, the Prospectus, nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading and, since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set forth; provided, however, that no representation need be made as to information contained in or omitted from the Registration Statement or any amendment or supplement in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Underwriter.
(v) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change in the conditions (financial or otherwise) of the Company or any Subsidiary, or any development involving a prospective material adverse change in the condition (financial or other) of the Company or any Subsidiary or affecting their businesses (resulting from litigation or otherwise), properties, net worth, prospects, or results of operations of the Company or any Subsidiary, whether or not arising from transactions in the ordinary course of business.
(d) The Underwriter shall have received on each Closing Date an opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, Atlanta, Georgia, counsel for the Company, in form reasonably satisfactory to the Underwriter and counsel for the Underwriter, addressed to the Underwriter and dated as of the First Closing Date or the Second Closing Date, as the case may be, to the effect that:
(i) The Company has been duly incorporated, is validly existing as a corporation with active status under the laws of the State of Florida, and has full power and authority (corporate and other) to own, lease, and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus (and any amendment or supplement thereto); based upon a review of standard compilations of state corporation and bank regulatory laws and certificates of officials in such jurisdictions, the Company is duly qualified to do business as foreign corporation under the corporation and banking laws of, and is in good standing as such in, each jurisdiction in which the conduct of its business or where the nature of its properties requires such registration or qualification, except where the failure to so register or qualify would not have a Material Adverse Effect; and the Company is duly registered and in good standing under the BHCA and is a member in good standing of the Federal Reserve System.
(ii) The Company, prior to the First Closing Date, does not have any Subsidiaries and does not, directly or indirectly, own any equity interest in, or control, any corporation, limited liability company, association, partnership, joint venture, trust, proprietorship, or other commercial or business entity or organization, except that the Company has the sole right to acquire all of the outstanding capital stock of the Bank, and upon acquisition of such stock the Bank will be the Company's only Subsidiary. Upon contribution to the Bank of the net proceeds from the sale of the Firm Shares as described in the Prospectus, and the issuance by the Bank of its capital stock after receipt thereof, and at all times subsequent thereto and as of the Second Closing Date, if any, all of the outstanding capital stock of the Bank (a) will have been issued to the Company, (b) when issued to the Company, will have been duly authorized, validly issued, fully paid and nonassessable, and (c) will be owned beneficially and of record by the Company, free and clear of any claim, lien, encumbrance, security interest, or restriction on transfer. Subject to the receipt of such capital contribution by the Company to the Bank, and satisfaction of the conditions set forth in the Bank Approvals, the Bank will be or is duly organized and validly existing as a nationally chartered banking association in good standing under the laws of the United States of America and the State of Florida, with full power and authority (corporate and other) to own, lease, and operate its properties and conduct its business as described in the Registration Statement, the Prospectus, the Application, and the Regulatory Approvals. The Bank is not, and will not be required to register or qualify to do business as a foreign corporation under the laws of any jurisdiction, and is not, and will not be, subject to any current formal arrangements or memorandum of understanding with, or cease and desist order by, any bank regulatory agency.
(iii) As of the time each Application was filed with the respective bank regulatory authorities (FRB, OCC, or FDR) and as of each Closing Date: (A) to the knowledge of such counsel, each such Application conformed in all material respects to the applicable respective requirements of the BHCA, the NBA, and the FDIA and the rules and regulations promulgated thereunder, and (B) to the knowledge of such counsel after due investigation, as of such times, none of the Applications contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading.
(iv) The Company has received the FRB Approval and the Bank has received the Bank Approvals and, to the knowledge of such counsel after due investigation, as of the date hereof and as of each Closing Date: (A) all such Regulatory Approvals are in full force and effect, and no actions to suspend, revoke, or terminate any of such Regulatory Approvals has been taken, have been initiated or are pending, threatened, or contemplated by any of the FRB, the OCC, or the FDIC; (B) neither the Company nor the Bank is in breach or default under any condition or of any commitment contained in any of such Regulatory Approvals; and (C) each of the Company and the Bank has satisfied all conditions precedent to such Regulatory Approvals which can be satisfied thereunder by them as of such date.
(v) The authorized, issued, and outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectus, and the Common Shares conform to the descriptions thereof contained in the Registration Statement and Prospectus. The certificates for the Shares to be delivered hereunder are in due and proper legal form and, when duly countersigned by the Company's transfer agent and delivered to the Underwriter or upon the order of the Underwriter in accordance with this Agreement, will comply in all material respects with the requirements of the Florida Business Corporation Act, and the Company's articles of incorporation and bylaws.
(vi) The Common Shares issued and outstanding prior to the issuance of the Firm Shares or the Option Shares, as the case may be, to be sold by the Company hereunder have been duly authorized and validly issued, are fully paid and nonassessable. There are no preemptive, preferential, or other rights (including rights of first refusal) to subscribe for or to purchase any of the Common Shares and no Common Shares have been issued in violation of such rights, nor are there any restrictions upon the voting or transfer of any Common Shares pursuant to the Company's articles of incorporation, bylaws, other governing documents, or any agreement or other instrument to which the Company or any Subsidiary is a party or by which any of them is bound.
(vii) The Firm Shares or the Option Shares, as the case may be, to be sold by the Company hereunder have been duly authorized and, when issued and paid for against delivery thereof in accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable, and the issuance of the Shares will not be in violation of, or subject to, any statutory preemptive, preferential, or, to the knowledge of such counsel, other rights (including rights of first refusal) to subscribe for or to purchase such Shares, nor are there any restrictions on the voting or transfer of such Shares under the Company's articles of incorporation, bylaws, or other governing documents.
(viii) Except as set forth in the Prospectus, neither the Company nor any Subsidiary has any outstanding options to purchase, or warrants to subscribe for, or any securities or obligations convertible or exchangeable into, or any contracts or commitments to issue or sell, any capital stock or any such options, warrants, convertible or exchangeable securities, or obligations, or rights of any description, contractual or otherwise, entitling any person to receive any class of security of the Company or any Subsidiary. No holder of any securities of the Company or any Subsidiary or any other person has the right, contractual or otherwise, to cause the Company to have any such securities included in the Registration Statement or to register any securities of the Company or any Subsidiary under the Securities Act or applicable Blue Sky Laws.
(ix) The Registration Statement has been declared effective under the Securities Act, and to the knowledge of such counsel after investigation, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted, are pending, threatened, or contemplated. All filings required by Rule 424 and Rule 430A under the Securities Act have been made in the manner and within the time period required by such rules and, at the Effective Date and at each Closing Date, contains the Registration Statement, the Prospectus, and each amendment or supplement thereto comply or will have complied as to form in all material respects with the requirements of the Securities Act and the Rules and Regulations (except that counsel shall express no opinion as to the financial statements and other statistical or financial data derived therefrom), and no amendments to the Registration Statement are required to be filed.
(x) Such counsel has participated in the preparation of the Registration Statement and the Prospectus, including review of and discussion of the contents thereof, and no facts have come to the attention of such counsel which lead it to believe that either the Registration Statement, the Prospectus, or any amendment or supplement thereto, as of their respective effective or issue dates, contained any untrue statement of a material fact or omits omitted to state a material fact required to be stated therein or necessary to make the statements thereintherein not misleading or that the Prospectus, as amended or supplemented, if applicable, as of the First Closing Date or the Second Closing Date, as the case may be, contains any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were mademade (except, not misleadingin each case, for the financial statements, notes and related schedules, and other statistical or financial data included therein, as to which such counsel need express no opinion).
(cxi) Deloitte & Touche LLP will have furnished The Company has requisite power and authority (corporate and other) to execute, deliver, and perform this Agreement and to issue, sell, and deliver the Shares to be sold by it to the Underwriter a letteras provided herein. The execution and delivery of this Agreement, dated as and the performance by the Company of its obligations hereunder and consummation of the Closing Date, in form and substance satisfactory to the Underwriter, to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth in the Definitive Free Writing Prospectus and the Prospectus Supplement under the caption “The Initial Mortgage Loans” and elsewhere therein agrees with the accounting records of the Depositor and, where applicable, the Mortgage Loan files of the Depositor, excluding any questions of legal interpretation.
(d) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4, Class A-1, Class A-2 and Class A-3 Certificates shall have been rated “AAA” by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”). The Class M-1 Certificates shall have been rated “AA+” by S&P, “AA+” by Fitch, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&P, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.transactions described he
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligations of the Underwriter to purchase the Certificates Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy in all respects of the representations and warranties on the part of the Depositor Company contained herein as of the date hereof and Execution Time, the Closing DateDate and any settlement date pursuant to Section 4 hereof, to the accuracy of the statements of the Depositor Company made in any Officers’ certificates pursuant to the provisions hereof, to the performance by the Depositor Company of its obligations hereunder and to the following additional conditions:
(a) ▇▇▇▇▇▇▇ ▇The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP LLP, counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in a form reasonably acceptable to the Representative.
(c) The Company shall have requested and caused M▇▇▇▇▇ and Calder (Cayman) LLP, Cayman Islands counsel for the Company, to have furnished to the Representative its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in a form reasonably acceptable to the Representative.
(d) The Representative shall have received from Cravath, Swaine & M▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, with respect to the issuance and sale of the Securities, the Registration Statement, the Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Underwriter opinionsRepresentative a certificate of the Company, signed by its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, substantially to the effect set forth in Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a certificate of the Depositor, signed by the President, Senior Vice President or any Vice President, dated the Closing Dateas applicable, to the effect that the signer signers of such certificate has have carefully examined the Registration Statement and Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) used in connection with the Offering, and this Agreement and that:
(i) The the representations and warranties of the Depositor Company in this Agreement are true and correct in all material respects on and as of the Closing Date such date with the same effect as if made on the Closing Date, such date and the Depositor Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesuch date;
(ii) No no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to his the Company’s knowledge, threatened; and
(iii) Nothing since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has come been no Material Adverse Effect, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(f) The Company shall have requested and caused M▇▇▇▇▇ to his attention that would lead him have furnished to believe that the Registration StatementRepresentative, at the Execution Time and at the Closing Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date, contains Date and any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectussettlement date, as of the Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) Deloitte & Touche LLP will have furnished to the Underwriter a letter, dated as of the Closing Dateapplicable, in form and substance satisfactory to the Underwriter, Representative.
(g) Subsequent to the effect that they have performed certain specified procedures Execution Time or, if earlier, the dates as a result of which they have determined that such information as the Underwriter may reasonably request of an accounting, financial or statistical nature set forth is given in the Definitive Free Writing Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus Supplement under (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the caption “The Initial Mortgage Loans” letter or letters referred to in paragraph (f) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and elsewhere therein agrees the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the accounting records offering or delivery of the Depositor andSecurities as contemplated by the Registration Statement (exclusive of any amendment thereof), where the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date, and any settlement date, as applicable, the Mortgage Loan files of Company shall have furnished to the DepositorRepresentative such further information, excluding any questions of legal interpretationcertificates and documents as the Representative may reasonably request.
(di) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby.
(j) The Depositor’s Home Equity Mortgage Pass-Through Certificates Series 2006-4Securities shall be duly listed subject to notice of issuance on the New York Stock Exchange, Class A-1, Class A-2 and Class A-3 Certificates satisfactory evidence of which shall have been rated “AAA” provided to the Representative.
(k) On the Effective Date, the Company shall have delivered to the Representative executed copies of the Trust Agreement, the Warrant Agreement, the Founder’s Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration and Shareholder Rights Agreement and the Administrative Services Agreement.
(l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Company shall have caused proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of Units issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per Unit as set forth on the cover of the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by Standard the Representative pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriter, this Agreement and all obligations of the Underwriter hereunder may be canceled at, or at any time prior to, the Closing Date by the Representative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 and, if applicable, the last sentence of Section 4(c), shall be delivered at the office of Cravath, Swaine & Poor’sM▇▇▇▇ LLP, a division of The counsel for the Underwriter, at 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇-, ▇▇▇ ▇▇▇▇, ▇▇▇ Companies▇▇▇▇, Inc. (“S&P”), “AAA” by Fitch Ratings, Inc. (“Fitch”), “AAA” by Dominion Bond Rating Service (“DBRS”) and “Aaa” by ▇▇▇▇▇’, Attention: C▇▇▇▇ Investors Service▇. ▇▇▇▇▇▇▇, Inc. (“Moody’s”)N▇▇▇▇▇▇▇ ▇. The Class M-1 Certificates shall have been rated “AA+” by S&P▇▇▇▇▇▇ and M▇▇▇▇▇▇ ▇. ▇▇▇▇▇, “AA+” by Fitchunless otherwise indicated herein, “AA (high)” by DBRS and “Aa1” by Moody’s. The Class M-2 Certificates shall have been rated “AA” by S&Pon the Closing Date or the applicable settlement date, “AA+” by Fitch, “AA” by DBRS and “Aa2” by Moody’s. The Class M-3 Certificates shall have been rated “AA-” by S&P, “AA-” by Fitch, “AA (low)” by DBRS and “Aa3” by Moody’s. The Class M-4 Certificates shall have been rated “A+” by S&P, “A+” by Fitch, “A (high)” by DBRS and “A1” by Moody’s. The Class M-5 Certificates shall have been rated “A” by S&P, “A+” by Fitch, “A” by DBRS and “A2” by Moody’s. The Class M-6 Certificates shall have been rated “A-” by S&P, “A” by Fitch, “A” by DBRS and “A3” by Moody’s. The Class M-7 Certificates shall have been rated “BBB+” by S&P, “A-” by Fitch, “A (low)” by DBRS and “Baa1” by Moody’s. The Class M-8 Certificates shall have been rated “BBB” by S&P, “BBB+” by Fitch, “BBB (high)” by DBRS and “Baa2” by Moody’s. The Class M-9 Certificates shall have been rated “BBB” by Fitch, “BBB” by DBRS and “Baa3” by Moody’s. The Class B-1 Certificates shall have been rated “BB+” by S&P, “BBB-“ by Fitch, “BBB (low)” by DBRS and “Ba1” by Moody’s. The Class A-R Certificates shall have been rated “AAA” by S&P.as applicable.
Appears in 1 contract
Sources: Underwriting Agreement (World Quantum Growth Acquisition Corp.)