Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to purchase and pay for the Certificates will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the written statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent: (i) On or prior to the date of this Agreement, the Underwriter shall have received a letter, dated the date of this Agreement, of Coopers & Lybrxxx xxx substantially in the form heretofore agreed, which letter shall be in form and substance agreed to by the Underwriter. (ii) If the Registration Statement has not become effective prior to the date of this Agreement, unless the Underwriter agrees in writing to a later time, the Registration Statement shall have become effective not later than (A) 6:00 p.m., New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 12:00 noon, New York City time, on such date or (B) 3:00 p.m. on the business day following the day on which the public offering price was deter mined, if such determination occurred after 12:00 noon, 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 shall 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. (iii) Subsequent to the execution and delivery of this Agreement, there shall have not occurred (a) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or Onyx which, in the reasonable judgment of the Underwriter materially impairs the investment quality of the Certificates; (b) 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 Onyx on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (c) any banking moratorium declared by Federal, New York or California authori- ties; (d) 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. (iv) The Underwriter shall have received an opinion, dated the Closing Date, of O'Melveny & Myerx XXX, counsel of the Company, substantially to the effect that: (a) The Company (1) is duly incorporated and is validly existing and in good standing under the laws of the State of Delaware, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts; (b) The Company has, or at the time such agreement was executed and delivered, had, the corporate power and corporate authority to execute and deliver this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement and to consummate the transactions contemplated herein and therein; (c) No consent, approval, authorization or order of, or filing with, any California, Delaware or federal governmental agency or body or any court is or was required by the Company to perform the transactions contemplated by this Agreement, Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement except for (1) filing of a Uniform Commercial Code financing statement in the State of (d) None of the execution, delivery and performance by the Company of this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement, the transfer of the Contracts to the Trust, the assignment of the security interests of the Company in the Financed Vehicles, the issuance and sale of the Certificates or the consummation of any other of the transactions contemplated herein or in the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement conflicts or will conflict with, has resulted or will result in a breach, violation or acceleration of any of the terms of, or has constituted or will constitute a default under, the By-Laws or the Certificate of Incorporation of the Company, as amended, or, to the best of such counsel's knowledge, any rule, order, statute or regulation known to such counsel to be currently applicable to the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or the terms of any material indenture or other material agreement or instrument known to such counsel to which the Company is a party or by which it or its properties are bound; (e) To the best knowledge of such counsel, after due inquiry, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement or the Certificates, (2) seeking to prevent the 17 issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement (3) seeking adversely to affect the federal income tax at tributes of the Certificates as described in the Prospectus under the headings "Prospectus Summary -- Tax Status" and "Certain Tax Consequences"; (f) This Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement have each been duly authorized, executed and delivered by the Company; (g) The Contracts constitute "chattel paper" as defined in Section 9-105(a)(2) of the Uniform Commercial Code of the State of California; (h) The statements in the Prospectus under the caption "Certain Legal Aspects of the Contracts," and "ERISA Considerations" to the extent they constitute matters of California or federal law or legal conclusions, are correct in all material respects; (i) The Certificates have been duly and validly authorized and, when executed, authenticated and issued in accordance with the terms of the Pooling and Servicing Agreement, and delivered to and paid for by the Underwriter pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement; (j) Assuming the authorization, execution and delivery thereof by the Trustee and the Servicer with respect to the Pooling and Servicing Agreement, and by Onyx with respect to Purchase Agreement, the Capitalized Interest Agreement and the Insurer with respect to the Insurance Agreement, each such agreement constitutes the legal, valid and binding agreement of the Company, enforceable against the Company in 18 accordance with its terms, subject, as to enforcement, to (1) the effect of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws of general application relating to or affecting creditors' rights generally (2) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and (3) the unenforceability under certain circumstances of provisions indemnifying a party against liability where such indemnification is contrary to public policy; (k) The Registration Statement became effective under the Act as of the date and time specified in such opinion; after due inquiry, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; the Registration Statement, and each amendment thereof or supplement thereto as of its Effective Date and the Prospectus as of its date of issuance appeared on its face to be appropriately responsive in all material respects to the applicable requirements of the Securities Act and the Rules and Regulations, and such counsel need not opine as to the financial statements and related notes, schedules and other financial and statistical data included therein; (l) The Certificates, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus; (m) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended; and (n) The Trust is not now, and immediately following the sale of the Certificates pursuant to this Agreement will not be, 19 required to be registered under the Investment Company Act of 1940, as amended. In addition, such counsel shall opine as to certain matters relating to the acquisition by the Company of a perfected first priority security interest in the vehicles financed by motor vehicle installment loans made by the Company. In rendering such 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 and public officials. References to the Prospectus in this paragraph (iv) include any supplements thereto. (v) The Underwriter shall have received an opinion, dated the Closing Date, of O'Melveny & Myerx XXX, counsel to Onyx, substantially to the effect that: (a) Onyx (1) is duly incorporated and is validly existing and in good standing under the laws of the State of California, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts; (b) Onyx has the corporate power and corporate authority to execute and deliver the Pooling and Servicing Agreement, the Capitalized Interest Agreement and the Purchase Agreement and at the time it was executed and delivered, had the power and authority to execute and deliver the Purchase Agreement, the Capitalized Interest Agreement and the Pooling and Servicing Agreement and to consummate the transactions contemplated herein and therein; (c) No consent, approval, authorization or order of, or filing with, any California or federal governmental agency or body or any court is required by Onyx to perform the transactions contemplated by the Pooling and Servicing Agreement, the Capitalized
Appears in 1 contract
Samples: Underwriting Agreement (Onyx Acceptance Grantor Trust 1997-4)
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter Your ------------------------------------------------ obligations to purchase and pay for the Certificates will Notes on the Closing Date shall be subject to the accuracy accuracy, as of the date hereof and as of the Closing Date, of the representations and warranties on the part of the Company hereinherein set forth, to the accuracy of the written statements Statements of Company officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereunder, and to the following additional conditions precedentconditions:
(ia) On or prior to the date of this Agreement, the Underwriter shall have received a letter, dated the date of this Agreement, of Coopers & Lybrxxx xxx substantially in the form heretofore agreed, which letter shall be in form and substance agreed to by the Underwriter.
(ii) If the Registration Statement has not become effective prior to the date of this Agreement, unless the Underwriter agrees in writing to a later time, the The Registration Statement shall have become effective not later than (A) 6:00 p.m.5:30 P.M., New York City Milwaukee, Wisconsin time, on the date of determination of the public offering pricethis Agreement, if or such determination occurred at later date or time as shall have been consented to in writing by you, and prior to 12:00 noon, New York City time, on such date or the Closing Date:
(Bi) 3:00 p.m. on the business day following the day on which the public offering price was deter mined, if such determination occurred after 12:00 noon, 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 shall 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.shall be pending, or, to the knowledge of the Company after due inquiry of the Commission, or 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) Subsequent 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 execution and public offering or the delivery of this Agreementthe 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 not occurred (a) been any change in the Capital Stock or debt of the Company or the Bank or a change, or any a development involving a prospective change, in or affecting particularly the business general affairs, management, financial position, stockholders' equity or properties results of operations of the Company or Onyx whichCompany, in the reasonable judgment of the Underwriter materially impairs the investment quality of the Certificates; (b) 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 Onyx on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (c) any banking moratorium declared by Federal, New York or California authori- ties; (d) any outbreak or material escalation of major hostilities Bank or any other substantial national or international calamity or emergency if, subsidiary otherwise than as set forth and described in the reasonable judgment Prospectus; and operating, political, international, economic or market conditions shall not exist, as of the Underwriterdate hereof or as the Closing Date, the effect of which, in any such outbreakcase described in this clause (a), escalation, calamity or emergency on the United States financial markets makes is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with completion the public offering of the sale of, and any payment for, Notes at 100% of the Certificatesprincipal amount thereof.
(ivb) The Underwriter 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 opinionopinion 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 O'Melveny & Myerx XXX, 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, substantially 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:
(ai) The the Company (1) is duly incorporated registered under the Bank Holding Company Act and is validly existing 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 good standing under 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 State Company or any of Delaware, its subsidiaries to third parties;
(2ii) the Company has the corporate full power and corporate authority to own its properties enter into and conduct its business as described in perform this Agreement and the Prospectus Indenture and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own issue and sell the ContractsNotes 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;
(biii) The the Notes have been duly authorized, executed, authenticated, issued and delivered and constitute valid and legally enforceable binding obligations of the Company hasentitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or at other laws relating to or affecting the time such agreement was executed and delivered, had, enforcement of creditors' rights; the corporate power and corporate authority to execute and deliver this Agreement, terms of the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement Notes and the Insurance Agreement and Indenture substantially conform to consummate the transactions contemplated herein and thereindescriptions thereof in the Prospectus;
(civ) No consent, approval, authorization or order of, or filing with, any California, Delaware or federal governmental agency or body or any court is or was required by the Company to perform the transactions contemplated by this Agreement, Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement except for (1) filing of a Uniform Commercial Code financing statement in the State of
(d) None of the execution, delivery and performance by the Company of this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement, the transfer of the Contracts to the Trust, the assignment of the security interests of the Company in the Financed Vehicles, the issuance and sale of the Certificates or the consummation of any other of the transactions contemplated herein or in the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement conflicts or will conflict with, Indenture has resulted or will result in a breach, violation or acceleration of any of the terms of, or has constituted or will constitute a default under, the By-Laws or the Certificate of Incorporation of the Company, as amended, or, to the best of such counsel's knowledge, any rule, order, statute or regulation known to such counsel to be currently applicable to the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or the terms of any material indenture or other material agreement or instrument known to such counsel to which the Company is a party or by which it or its properties are bound;
(e) To the best knowledge of such counsel, after due inquiry, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement or the Certificates, (2) seeking to prevent the 17 issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement (3) seeking adversely to affect the federal income tax at tributes of the Certificates as described in the Prospectus under the headings "Prospectus Summary -- Tax Status" and "Certain Tax Consequences";
(f) This Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement have each 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 or affecting the enforcement of creditors' rights and 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 any order of any court;
(gv) The Contracts constitute "chattel paper" as defined in Section 9-105(a)(2) all taxes and fees required to be paid with respect to the execution of the Uniform Commercial Code Indenture and the issuance of the State of CaliforniaNotes 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;
(hvi) The statements all of the issued shares of capital stock of the Company as set forth in the Prospectus under the caption "Certain Legal Aspects of the Contracts," and "ERISA Considerations" to the extent they constitute matters of California or federal law or legal conclusions, are correct in all material respects;
(i) The Certificates 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, when executedexcept to the extent described in the Prospectus, authenticated and issued in accordance with the terms all outstanding shares of stock of each subsidiary of the Pooling and Servicing Agreement, and delivered to and paid for Company are owned by the Underwriter pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement;
(j) Assuming the authorization, execution and delivery thereof by the Trustee and the Servicer with respect to the Pooling and Servicing Agreement, and by Onyx with respect to Purchase Agreement, the Capitalized Interest Agreement and the Insurer with respect to the Insurance Agreement, each such agreement constitutes the legal, valid and binding agreement Company or another subsidiary of the Company, enforceable against 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 in 18 accordance with its terms, subject, as to enforcement, to (1) the effect or a subsidiary thereof are held free and clear of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws of general application relating to or affecting creditors' rights generally (2) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); liens and (3) the unenforceability under certain circumstances of provisions indemnifying a party against liability where such indemnification is contrary to public policyencumbrances;
(kvii) The the Registration Statement became has become effective under the Act as and the Commission has not issued an order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the effectiveness of the date Registration Statement, and time specified in such opinion; after due inquiry, to the best of such counsel's knowledge, no stop order suspending the effectiveness knowledge after due inquiry of the Registration Statement has been issued and 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 thereof 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 its Effective Date and the Prospectus as of its date of issuance appeared on its face such opinion contains any untrue statement of a material fact or omits to state any material fact required to be appropriately responsive in all material respects stated therein or necessary to make the applicable requirements of the Securities Act and the Rules and Regulations, and such counsel need statements therein not opine as to the misleading (other than financial statements and related notesschedules thereto, schedules 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 financial and statistical data included therein;
(l) The Certificatesdocuments, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement conform in all material respects or transactions or relationships of a character required to be filed as an exhibit to the descriptions thereof contained Registration Statement or required to be described in the Registration Statement and Statement, any Preliminary Prospectus, the Prospectus;
Prospectus or any amendment or supplement thereto which are not filed or described as required (m) The Pooling and Servicing Agreement is not no opinion need be given as to consents, approvals, authorizations, registrations or qualifications required to be qualified under state securities or blue sky laws in connection with the Trust Indenture Act public offering of 1939, as amendedthe Notes by you); and
(n) The Trust is not now, and immediately following the sale of the Certificates pursuant to this Agreement will not be, 19 required to be registered under the Investment Company Act of 1940, as amended. In addition, such counsel shall opine as to certain matters relating to the acquisition by the Company of a perfected first priority security interest in the vehicles financed by motor vehicle installment loans made by the Company. In rendering such 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 and public officials. References to the Prospectus in this paragraph (iv) include any supplements thereto.
(v) The Underwriter shall have received an opinion, dated the Closing Date, of O'Melveny & Myerx XXX, counsel to Onyx, substantially to the effect that:
(a) Onyx (1) is duly incorporated and is validly existing and in good standing under the laws of the State of California, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts;
(b) Onyx has the corporate power and corporate authority to execute and deliver the Pooling and Servicing Agreement, the Capitalized Interest Agreement and the Purchase Agreement and at the time it was executed and delivered, had the power and authority to execute and deliver the Purchase Agreement, the Capitalized Interest Agreement and the Pooling and Servicing Agreement and to consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with, any California or federal governmental agency or body or any court is required by Onyx to perform the transactions contemplated by the Pooling and Servicing Agreement, the Capitalized
Appears in 1 contract
Samples: Underwriting Agreement (Financial Services Corporation of the Midwest)
Conditions to the Obligations of the Underwriter. The obligation obligations of the Underwriter to purchase and pay for the Registered Certificates will shall be subject to the accuracy of the representations and warranties on the part of the Company hereincontained herein as of the date 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 written statements of officers of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedentconditions:
(ia) On or prior to the date of this Agreement, the Underwriter shall have received a letter, dated the date of this Agreement, of Coopers & Lybrxxx xxx substantially in the form heretofore agreed, which letter shall be in form and substance agreed to by the Underwriter.
(ii) If the Registration Statement has not become effective prior to the date of this Agreement, unless the Underwriter agrees in writing to a later time, the Registration Statement shall have become effective not later than (A) 6:00 p.m., New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 12:00 noon, New York City time, on such date or (B) 3:00 p.m. on the business day following the day on which the public offering price was deter mined, if such determination occurred after 12:00 noon, 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 shall be filed in the manner and within the time period required by Rule 424(b); and no No stop order suspending the effectiveness of the Registration Statement 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.
(iii) Subsequent to ; and the execution and delivery of this Agreement, there Final Prospectus shall have not occurred (a) any change, been filed or any development involving a prospective change, transmitted for filing with the Commission in or affecting particularly the business or properties of the Company or Onyx which, in the reasonable judgment of the Underwriter materially impairs the investment quality of the Certificates; (b) 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 Onyx on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (c) any banking moratorium declared by Federal, New York or California authori- ties; (d) 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 accordance with completion of the sale of, and any payment for, the Certificates.
(iv) The Underwriter shall have received an opinion, dated the Closing Date, of O'Melveny & Myerx XXX, counsel of the Company, substantially to the effect that:
(a) The Company (1) is duly incorporated and is validly existing and in good standing Rule 424 under the laws of the State of Delaware, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts;0000 Xxx.
(b) The Company hasshall have delivered to you a certificate of the Company, signed by the President or at a vice president or an assistant vice president of the time Company and dated the Closing Date, to the effect that the signer of such agreement was executed certificate has carefully examined the Registration Statement, Final Prospectus and delivered, had, the corporate power and corporate authority to execute and deliver this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and that (i) the Insurance Agreement representations and to consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with, any California, Delaware or federal governmental agency or body or any court is or was required by the Company to perform the transactions contemplated by this Agreement, Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement except for (1) filing of a Uniform Commercial Code financing statement in the State of
(d) None of the execution, delivery and performance by the Company of this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement, the transfer of the Contracts to the Trust, the assignment of the security interests warranties of the Company in the Financed Vehicles, the issuance this Agreement are true and sale of the Certificates or the consummation of any other of the transactions contemplated herein or in the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement conflicts or will conflict with, has resulted or will result in a breach, violation or acceleration of any of the terms of, or has constituted or will constitute a default under, the By-Laws or the Certificate of Incorporation of the Company, as amended, or, to the best of such counsel's knowledge, any rule, order, statute or regulation known to such counsel to be currently applicable to the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or the terms of any material indenture or other material agreement or instrument known to such counsel to which the Company is a party or by which it or its properties are bound;
(e) To the best knowledge of such counsel, after due inquiry, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement or the Certificates, (2) seeking to prevent the 17 issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement (3) seeking adversely to affect the federal income tax at tributes of the Certificates as described in the Prospectus under the headings "Prospectus Summary -- Tax Status" and "Certain Tax Consequences";
(f) This Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement have each been duly authorized, executed and delivered by the Company;
(g) The Contracts constitute "chattel paper" as defined in Section 9-105(a)(2) of the Uniform Commercial Code of the State of California;
(h) The statements in the Prospectus under the caption "Certain Legal Aspects of the Contracts," and "ERISA Considerations" to the extent they constitute matters of California or federal law or legal conclusions, are correct in all material respects;
(i) The Certificates have been duly respects at and validly authorized and, when executed, authenticated and issued in accordance with the terms of the Pooling and Servicing Agreement, and delivered to and paid for by the Underwriter pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement;
(j) Assuming the authorization, execution and delivery thereof by the Trustee and the Servicer with respect to the Pooling and Servicing Agreement, and by Onyx with respect to Purchase Agreement, the Capitalized Interest Agreement and the Insurer with respect to the Insurance Agreement, each such agreement constitutes the legal, valid and binding agreement of the Company, enforceable against the Company in 18 accordance with its terms, subject, as to enforcement, to (1) the effect of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws of general application relating to or affecting creditors' rights generally (2) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and (3) the unenforceability under certain circumstances of provisions indemnifying a party against liability where such indemnification is contrary to public policy;
(k) The Registration Statement became effective under the Act as of the date Closing Date with the same effect as if made on the Closing Date, (ii) the Company has, in all material respects, complied with all the agreements and time specified in such opinion; after due inquiry, satisfied all the conditions on its part that are required by this Agreement to be performed or satisfied at or prior to the best of such counsel's knowledgeClosing Date, (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; the Registration Statement, and each amendment thereof or supplement thereto as of its Effective Date and the Prospectus as of its date of issuance appeared on its face to be appropriately responsive in all material respects to the applicable requirements of the Securities Act and the Rules and Regulations, and such counsel need not opine as to the financial statements and related notes, schedules and other financial and statistical data included therein;
(l) The Certificates, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus;
(m) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended; and
(n) The Trust is not now, and immediately following the sale of the Certificates pursuant to this Agreement will not be, 19 required to be registered under the Investment Company Act of 1940, as amended. In addition, such counsel shall opine as to certain matters relating to the acquisition by the Company of a perfected first priority security interest in the vehicles financed by motor vehicle installment loans made by the Company. In rendering such opinion, such counsel may rely as to matters of factor, to the extent deemed proper and as stated thereinCompany’s knowledge, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph threatened, (iv) include nothing has come to the attention of such officer that would lead such officer to believe that the Final Prospectus contains any supplements theretountrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) subsequent to the respective dates as of which information is given in the Final Prospectus, there has not been any material adverse change in the general affairs, capitalization, financial condition or results of operations of the Company.
(vc) The Underwriter shall have received from Xxxxxxx Xxxxxxxx & Xxxx llp, counsel for the Company and the Seller, a favorable opinion, dated the Closing Date and satisfactory in form and substance to counsel for the Underwriter.
(d) The Representative shall have received from Deloitte & Touche, certified public accountants, a letter, dated the date hereof and satisfactory in form and substance to the Representative and counsel for the Underwriter, to the effect that they have performed certain specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature set forth in each respective Final Prospectus under the captions “Summary of Prospectus Supplement—The Mortgage Loans,” “Risk Factors” (to the extent of information regarding the Mortgage Loans therein) “The Mortgage Pool” “Yield on the Certificates” and “Description of the Certificates” agrees with the records of the Seller.
(e) The Certificates shall have been given the ratings set forth in Schedule I hereto by the Rating Agency.
(f) The Representative shall have received, from counsel for the Trustee, a favorable opinion, dated the Closing Date, of O'Melveny & Myerx XXXand in form and substance satisfactory to the Representative and its counsel, counsel to Onyx, substantially to the effect thatthat the Pooling and Servicing Agreement has been duly authorized, executed and delivered by the Trustee and constitutes the legal, valid and binding agreement of the Trustee, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights in general and by general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law, and as to such other matters as may be agreed upon by the Trustee and the Representative.
(g) The Representative shall have received from the Seller, in form and substance satisfactory to counsel for the Underwriter:
(ai) Onyx An officer’s certificate stating that on the Closing Date the representations and warranties of the Seller under the Mortgage Loan Purchase Agreement will be true and correct and no event has occurred that would constitute a default thereunder; and
(1ii) is duly incorporated An officer’s certificate relating to the Mortgage Loan Purchase Agreement and is validly existing the obligations of the Seller thereunder, as Seller or otherwise, together with copies of the certificate of incorporation and in by-laws of the Seller and a certificate of good standing of the Seller under the laws of the State of California, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the ContractsNew York;
(bh) Onyx has The Representative shall have received from the corporate power Master Servicer, in form and corporate authority substance satisfactory to execute counsel for the Underwriter:
(i) An officer’s certificate stating that on the Closing Date the representations and deliver warranties of the Master Servicer contained in the Pooling and Servicing Agreement, Agreement will be true and correct and no event has occurred with respect to the Capitalized Interest Agreement and the Purchase Agreement and at the time it was executed and delivered, had the power and authority Master Servicer that would constitute an Event of Default thereunder; and
(ii) An officer’s certificate relating to execute and deliver the Purchase Agreement, the Capitalized Interest Agreement and the Pooling and Servicing Agreement and to consummate the transactions contemplated herein obligations of the Master Servicer thereunder, as Master Servicer or otherwise, and therein;attached thereto the Articles of Association of the Master Servicer, together with copies of the charter and by-laws of the Master Servicer and a certificate of good standing of the Master Servicer issued by the Office of the Comptroller of the Currency of the United States of America.
(ci) No consentThe Representative shall have received from counsel to the Master Servicer, approvala favorable opinion, authorization dated the Closing Date and satisfactory in form and substance to counsel for the Underwriter.
(j) The Underwriter shall have received copies of any opinions of counsel to the Company, the Seller, each Underlying Seller and the Master Servicer supplied to the Rating Agency or order of, the Trustee relating to certain matters with respect to the Certificates. Any such opinions shall be dated the Closing Date and addressed to the Underwriter or filing with, any California accompanied by the reliance letters to the Underwriter or federal governmental agency or body or any court is required by Onyx to perform shall state that the Underwriter may rely upon them.
(k) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be satisfactory in form and substance to the Representative and counsel for the Underwriter, and the Representative and counsel for the Underwriter shall have received such other information, certificates and documents as they may reasonably request.
(l) All documents required under the Mortgage Loan Purchase Agreement have been provided to the appropriate parties. 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, if the Company is in breach of any covenants or agreements contained herein 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 Representative 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 the Representative. Notice of such cancellation shall be given to the Company in writing, or by telephone or telegraph confirmed in writing.
(m) The Representative shall have received, from counsel for the Paying Agent, a favorable opinion, dated the Closing Date, and in form and substance satisfactory to the Representative and its counsel, to the effect that the Pooling and Servicing AgreementAgreement has been duly authorized, executed and delivered by the CapitalizedPaying Agent and constitutes the legal, valid and binding agreement of the Paying Agent, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights in general and by general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law, and as to such other matters as may be agreed upon by the Paying Agent and the Representative.
Appears in 1 contract
Samples: Underwriting Agreement (Citigroup Mortgage Loan Trust 2007-Ar1)
Conditions to the Obligations of the Underwriter. The obligation ------------------------------------------------ obligations of the Underwriter to purchase and pay for Certificates on the Certificates will Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company Bank contained herein, to the accuracy of the written statements of officers of the Company Bank made in any certificates pursuant to the provisions terms hereof, to the performance by the Company Bank of its obligations hereunder and under the applicable Terms Agreement and to the following additional conditions precedentconditions:
(ia) On The Final Prospectus shall have been filed with the Commission pursuant to Rule 424 in the manner and within the applicable time period prescribed for such filing by the rules and regulations of the Commission under the Act and in accordance with Section 5(a) of this Agreement; and, as of the Closing Date, no stop order suspending the effectiveness of any Registration Statement shall have been issued, and no proceedings for such purpose shall have been instituted or prior Chase Securities Inc. December 17, 1997 Page 16 threatened by the Commission; and all requests for additional information from the Commission with respect to any Registration Statement shall have been complied with to the reasonable satisfaction of the Underwriter.
(b) Subsequent to the date of this Agreement, the Underwriter shall have received a letter, dated the date of this Agreement, of Coopers & Lybrxxx xxx substantially in the form heretofore agreed, which letter shall be in form and substance agreed to by the Underwriter.
(ii) If the Registration Statement has not become effective prior to the date of this Agreement, unless the Underwriter agrees in writing to a later time, the Registration Statement shall have become effective not later than (A) 6:00 p.m., New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 12:00 noon, New York City time, on such date or (B) 3:00 p.m. on the business day following the day on which the public offering price was deter mined, if such determination occurred after 12:00 noon, 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 shall 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.
(iii) Subsequent to the execution and delivery of this Agreement, there shall not have not occurred (ai) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or Onyx which, in the reasonable judgment of the Underwriter Bank which materially impairs the investment quality of the Certificates; (bii) any suspension or material limitation of trading in of securities generally on the New York Stock Exchange or the American Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of Onyx on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (ciii) a declaration of a general moratorium on commercial banking activities in New York by either Federal or New York State authorities; or (iv) any banking moratorium declared by Federal, New York or California authori- ties; (d) any material outbreak or material escalation declaration of major hostilities or any other substantial national or international calamity or emergency ifcrisis the effect of which on the financial markets of the United States is such as to make it, in the reasonable judgment of the Underwriter, impracticable to market the effect of any such outbreak, escalation, calamity or emergency Certificates on the United States financial markets makes it impracticable or inadvisable to proceed with completion of terms specified herein and the sale of, and any payment for, the Certificatesapplicable Terms Agreement.
(ivc) The Underwriter shall have has received an opiniona certificate of a Vice President or other proper officer of the Bank, dated the Closing Date, of O'Melveny & Myerx XXX, counsel of the Company, substantially to the effect that:
(a) The Company (1) is duly incorporated and is validly existing and in good standing under the laws of the State of Delaware, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts;
(b) The Company has, or at the time which such agreement was executed and delivered, had, the corporate power and corporate authority to execute and deliver this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement and to consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with, any California, Delaware or federal governmental agency or body or any court is or was required by the Company to perform the transactions contemplated by this Agreement, Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement except for (1) filing of a Uniform Commercial Code financing statement in the State of
(d) None of the execution, delivery and performance by the Company of this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement, the transfer of the Contracts to the Trust, the assignment of the security interests of the Company in the Financed Vehicles, the issuance and sale of the Certificates or the consummation of any other of the transactions contemplated herein or in the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement conflicts or will conflict with, has resulted or will result in a breach, violation or acceleration of any of the terms of, or has constituted or will constitute a default under, the By-Laws or the Certificate of Incorporation of the Company, as amended, orofficer, to the best of such counsel's his knowledge, any rule, order, statute or regulation known to such counsel to be currently applicable to shall state that (i) the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or the terms of any material indenture or other material agreement or instrument known to such counsel to which the Company is a party or by which it or its properties are bound;
(e) To the best knowledge of such counsel, after due inquiry, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of this Agreement, the Pooling representations and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement or the Certificates, (2) seeking to prevent the 17 issuance warranties of the Certificates or the consummation of any of the transactions contemplated by Bank in this Agreement, the Pooling Agreement are true and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement (3) seeking adversely to affect the federal income tax at tributes of the Certificates as described in the Prospectus under the headings "Prospectus Summary -- Tax Status" and "Certain Tax Consequences";
(f) This Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement have each been duly authorized, executed and delivered by the Company;
(g) The Contracts constitute "chattel paper" as defined in Section 9-105(a)(2) of the Uniform Commercial Code of the State of California;
(h) The statements in the Prospectus under the caption "Certain Legal Aspects of the Contracts," and "ERISA Considerations" to the extent they constitute matters of California or federal law or legal conclusions, are correct in all material respects;
, (iii) The Certificates have been duly the Bank has complied with all agreements and validly authorized and, when executed, authenticated and issued in accordance with the terms of the Pooling and Servicing Agreement, and delivered satisfied all conditions on its part to and paid for by the Underwriter pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled performed or satisfied at or prior to the benefits of the Pooling and Servicing Agreement;
Closing Date, (jiii) Assuming the authorization, execution and delivery thereof by the Trustee and the Servicer with respect to the Pooling and Servicing Agreement, and by Onyx with respect to Purchase Agreement, the Capitalized Interest Agreement and the Insurer with respect to the Insurance Agreement, each such agreement constitutes the legal, valid and binding agreement of the Company, enforceable against the Company in 18 accordance with its terms, subject, as to enforcement, to (1) the effect of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws of general application relating to or affecting creditors' rights generally (2) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and (3) the unenforceability under certain circumstances of provisions indemnifying a party against liability where such indemnification is contrary to public policy;
(k) The Registration Statement became effective under the Act as of the date and time specified in such opinion; after due inquiry, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the a Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending threatened by the Commission and (iv) the Final Prospectus does not contain any untrue statement of a material fact or contemplated 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 which they were made, not misleading.
(d) The Bank shall have furnished to the Act; Underwriter the opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Chase Securities Inc. December 17, 1997 Page 17 Bank, dated the Closing Date, in substantially the forms attached hereto as Exhibits 1 through 3, with only such changes as shall be reasonably satisfactory to the Underwriter.
(e) The Underwriter shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriter, one or more opinions, each dated the Closing Date, with respect to the validity of the Certificates, the Initial Registration Statement, the Additional Registration Statement (if any), the Final Prospectus, certain matters of the Uniform Commercial Code, as adopted in the State of Delaware, and each amendment thereof such other related matters as the Underwriter may reasonably require, and the Bank shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters.
(f) At the date of the applicable Terms Agreement and at the Closing Date, Price Waterhouse LLP (or supplement thereto such other independent public accountants as shall be named in the applicable Terms Agreement), certified independent public accountants for the Bank, shall have furnished to the Underwriter a letter or letters, dated respectively as of its Effective Date the date of the applicable Terms Agreement and the Prospectus as of its date of issuance appeared on its face to be appropriately responsive in all material respects to the applicable requirements Closing Date confirming that they are certified independent public accountants within the meaning of the Securities Act and the Rules and RegulationsExchange Act, and such counsel need not opine as the respective applicable published rules and regulations thereunder and substantially in the form heretofore agreed and otherwise in form and in substance satisfactory to the financial statements Underwriter and related notes, schedules and other financial and statistical data included therein;counsel for the Underwriter.
(lg) The CertificatesUnderwriter shall receive evidence satisfactory to it that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware, reflecting the interest of the Trustee in the Receivables and the proceeds thereof.
(h) The Underwriter shall have received from Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to the Trustee, an opinion, dated the Closing Date, to the effect that:
(i) The Trustee has been duly organized and is validly existing as a banking corporation under the laws of New York and has the corporate power and authority to conduct business and affairs as a trustee.
(ii) The Trustee has the corporate power and authority to perform the duties and obligations of trustee under, and to accept the trust contemplated by, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement Supplement and the Insurance Agreement conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus;
(m) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended; and
(n) The Trust is not now, and immediately following the sale of the Certificates pursuant to this Agreement will not be, 19 required to be registered under the Investment Company Act of 1940, as amended. In addition, such counsel shall opine as to certain matters relating to the acquisition by the Company of a perfected first priority security interest in the vehicles financed by motor vehicle installment loans made by the Company. In rendering such 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 and public officials. References to the Prospectus in this paragraph (iv) include any supplements theretoCredit Enhancement Agreement.
(viii) The Underwriter shall have received an opinion, dated the Closing Date, Each of O'Melveny & Myerx XXX, counsel to Onyx, substantially to the effect that:
(a) Onyx (1) is duly incorporated and is validly existing and in good standing under the laws of the State of California, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts;
(b) Onyx has the corporate power and corporate authority to execute and deliver the Pooling and Servicing Agreement, the Capitalized Interest Agreement Supplement and the Purchase Credit Enhancement Agreement has been duly authorized, executed, and delivered by the Trustee and constitutes a legal, valid and binding obligation of the Trustee enforceable against the Trustee in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at the time it was law).
(iv) The Certificates have been duly executed and delivered, had authenticated by the power and authority to execute and deliver the Purchase Agreement, the Capitalized Interest Agreement and the Pooling and Servicing Agreement and to consummate the transactions contemplated herein and therein;Trustee.
(cv) No consent, approval, authorization or order of, or filing with, any California or federal governmental agency or body or any court is required Neither the execution nor the delivery by Onyx to perform the transactions contemplated by Trustee of the Pooling and Servicing Agreement, the CapitalizedSupplement and the Credit Enhancement Agreement nor the consummation of any of the transactions contemplated thereby require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee.
(vi) The execution and delivery of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement by the Trustee and the performance by the Trustee of their respective terms do not Chase Securities Inc. December 17, 1997 Page 19 conflict with or result in a violation of (x) any law or regulation of any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee, or (y) the Certificate of Incorporation or By-laws of the Trustee.
(i) The Underwriter shall be named as recipient or shall have received reliance letters, if applicable, with respect to any opinions delivered to the Bank by counsel of the Credit Enhancement Provider, if any.
(j) The Underwriter shall have received evidence satisfactory to it that the Certificates shall be rated in accordance with the applicable Terms Agreement by the Rating Agency.
(k) The Underwriter shall have received a certificate of a Vice President or other proper officer of the Servicer, dated the Closing Date, in which such officer, to the best of his or her knowledge, shall state that the representations and warranties of the Servicer in the Pooling and Servicing Agreement and the Supplement are true and correct.
(l) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter in all material respects and the Underwriter and counsel for the Underwriter shall have received such information, certificates and documents as the Underwriter or counsel for the Underwriter may reasonably request. If any of the conditions specified in this Section 7 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 their counsel, this Agreement and all obligations of the Underwriter hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Bank in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation ------------------------------------------------ obligations of the Underwriter to purchase and pay for Certificates on the Certificates will Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company Bank contained herein, to the accuracy of the written statements of officers of the Company Bank made in any certificates pursuant to the provisions terms hereof, to the performance by the Company Bank of its obligations hereunder and under the applicable Terms Agreement and to the following additional conditions precedentconditions:
(ia) On The Final Prospectus shall have been filed with the Commission pursuant to Rule 424 in the manner and within the applicable time period prescribed for such filing by the Chase Securities Inc. December 10, 1997 Page 13 rules and regulations of the Commission under the Act and in accordance with Section 5(a) of this Agreement; and, as of the Closing Date, no stop order suspending the effectiveness of any Registration Statement shall have been issued, and no proceedings for such purpose shall have been instituted or prior threatened by the Commission; and all requests for additional information from the Commission with respect to any Registration Statement shall have been complied with to the reasonable satisfaction of the Underwriter.
(b) Subsequent to the date of this Agreement, the Underwriter shall have received a letter, dated the date of this Agreement, of Coopers & Lybrxxx xxx substantially in the form heretofore agreed, which letter shall be in form and substance agreed to by the Underwriter.
(ii) If the Registration Statement has not become effective prior to the date of this Agreement, unless the Underwriter agrees in writing to a later time, the Registration Statement shall have become effective not later than (A) 6:00 p.m., New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 12:00 noon, New York City time, on such date or (B) 3:00 p.m. on the business day following the day on which the public offering price was deter mined, if such determination occurred after 12:00 noon, 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 shall 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.
(iii) Subsequent to the execution and delivery of this Agreement, there shall not have not occurred (ai) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or Onyx which, in the reasonable judgment of the Underwriter Bank which materially impairs the investment quality of the Certificates; (bii) any suspension or material limitation of trading in of securities generally on the New York Stock Exchange or the American Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of Onyx on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (ciii) a declaration of a general moratorium on commercial banking activities in New York by either Federal or New York State authorities; or (iv) any banking moratorium declared by Federal, New York or California authori- ties; (d) any material outbreak or material escalation declaration of major hostilities or any other substantial national or international calamity or emergency ifcrisis the effect of which on the financial markets of the United States is such as to make it, in the reasonable judgment of the Underwriter, impracticable to market the effect of any such outbreak, escalation, calamity or emergency Certificates on the United States financial markets makes it impracticable or inadvisable to proceed with completion of terms specified herein and the sale of, and any payment for, the Certificatesapplicable Terms Agreement.
(ivc) The Underwriter shall have has received an opiniona certificate of a Vice President or other proper officer of the Bank, dated the Closing Date, of O'Melveny & Myerx XXX, counsel of the Company, substantially to the effect that:
(a) The Company (1) is duly incorporated and is validly existing and in good standing under the laws of the State of Delaware, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts;
(b) The Company has, or at the time which such agreement was executed and delivered, had, the corporate power and corporate authority to execute and deliver this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement and to consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with, any California, Delaware or federal governmental agency or body or any court is or was required by the Company to perform the transactions contemplated by this Agreement, Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement except for (1) filing of a Uniform Commercial Code financing statement in the State of
(d) None of the execution, delivery and performance by the Company of this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement, the transfer of the Contracts to the Trust, the assignment of the security interests of the Company in the Financed Vehicles, the issuance and sale of the Certificates or the consummation of any other of the transactions contemplated herein or in the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement conflicts or will conflict with, has resulted or will result in a breach, violation or acceleration of any of the terms of, or has constituted or will constitute a default under, the By-Laws or the Certificate of Incorporation of the Company, as amended, orofficer, to the best of such counsel's his knowledge, any rule, order, statute or regulation known to such counsel to be currently applicable to shall state that (i) the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or the terms of any material indenture or other material agreement or instrument known to such counsel to which the Company is a party or by which it or its properties are bound;
(e) To the best knowledge of such counsel, after due inquiry, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of this Agreement, the Pooling representations and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement or the Certificates, (2) seeking to prevent the 17 issuance warranties of the Certificates or the consummation of any of the transactions contemplated by Bank in this Agreement, the Pooling Agreement are true and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement (3) seeking adversely to affect the federal income tax at tributes of the Certificates as described in the Prospectus under the headings "Prospectus Summary -- Tax Status" and "Certain Tax Consequences";
(f) This Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement have each been duly authorized, executed and delivered by the Company;
(g) The Contracts constitute "chattel paper" as defined in Section 9-105(a)(2) of the Uniform Commercial Code of the State of California;
(h) The statements in the Prospectus under the caption "Certain Legal Aspects of the Contracts," and "ERISA Considerations" to the extent they constitute matters of California or federal law or legal conclusions, are correct in all material respects;
, (iii) The Certificates have been duly the Bank has complied with all agreements and validly authorized and, when executed, authenticated and issued in accordance with the terms of the Pooling and Servicing Agreement, and delivered satisfied all conditions on its part to and paid for by the Underwriter pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled performed or satisfied at or prior to the benefits of the Pooling and Servicing Agreement;
Closing Date, (jiii) Assuming the authorization, execution and delivery thereof by the Trustee and the Servicer with respect to the Pooling and Servicing Agreement, and by Onyx with respect to Purchase Agreement, the Capitalized Interest Agreement and the Insurer with respect to the Insurance Agreement, each such agreement constitutes the legal, valid and binding agreement of the Company, enforceable against the Company in 18 accordance with its terms, subject, as to enforcement, to (1) the effect of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws of general application relating to or affecting creditors' rights generally (2) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and (3) the unenforceability under certain circumstances of provisions indemnifying a party against liability where such indemnification is contrary to public policy;
(k) The Registration Statement became effective under the Act as of the date and time specified in such opinion; after due inquiry, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the a Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending threatened by the Commission and (iv) the Final Prospectus does not contain any untrue statement of a material fact or contemplated 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 which they were made, not misleading.
(d) The Bank shall have furnished to the Act; Underwriter the opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Bank, dated the Closing Date, in substantially the forms attached hereto as Exhibits 1 through 3, with only such changes as shall be reasonably satisfactory to the Underwriter.
(e) The Underwriter shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriter, one or more opinions, each dated the Closing Date, with respect to the validity of the Certificates, the Initial Registration Statement, the Additional Registration Statement (if any), the Final Prospectus, certain matters of the Uniform Commercial Code, as adopted in the State of Delaware, and each amendment thereof such other related matters as the Underwriter may reasonably require, and the Bank shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters.
(f) At the date of the applicable Terms Agreement and at the Closing Date, Price Waterhouse LLP (or supplement thereto such other independent public accountants as shall be named in the applicable Terms Agreement), certified independent public accountants for the Bank, shall have furnished to the Underwriter a letter or letters, dated respectively as of its Effective Date the date of the applicable Terms Agreement and the Prospectus as of its date of issuance appeared on its face to be appropriately responsive in all material respects to the applicable requirements Closing Date confirming that they are certified independent public accountants within the meaning of the Securities Act and the Rules and RegulationsExchange Act, and such counsel need not opine as the respective applicable published rules and regulations thereunder and substantially in the form heretofore agreed and otherwise in form and in substance satisfactory to the financial statements Underwriter and related notes, schedules and other financial and statistical data included therein;counsel for the Underwriter.
(lg) The CertificatesUnderwriter shall receive evidence satisfactory to it that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware, reflecting the interest of the Trustee in the Receivables and the proceeds thereof.
(h) The Underwriter shall have received from Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to the Trustee, an opinion, dated the Closing Date, to the effect that:
(i) The Trustee has been duly organized and is validly existing as a banking corporation under the laws of New York and has the corporate power and authority to conduct business and affairs as a trustee.
(ii) The Trustee has the corporate power and authority to perform the duties and obligations of trustee under, and to accept the trust contemplated by, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement Supplement and the Insurance Agreement conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus;
(m) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended; and
(n) The Trust is not now, and immediately following the sale of the Certificates pursuant to this Agreement will not be, 19 required to be registered under the Investment Company Act of 1940, as amended. In addition, such counsel shall opine as to certain matters relating to the acquisition by the Company of a perfected first priority security interest in the vehicles financed by motor vehicle installment loans made by the Company. In rendering such 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 and public officials. References to the Prospectus in this paragraph (iv) include any supplements theretoCredit Enhancement Agreement.
(viii) The Underwriter shall have received an opinion, dated the Closing Date, Each of O'Melveny & Myerx XXX, counsel to Onyx, substantially to the effect that:
(a) Onyx (1) is duly incorporated and is validly existing and in good standing under the laws of the State of California, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts;
(b) Onyx has the corporate power and corporate authority to execute and deliver the Pooling and Servicing Agreement, the Capitalized Interest Agreement Supplement and the Purchase Credit Enhancement Agreement has been duly authorized, executed, and delivered by the Chase Securities Inc. December 10, 1997 Page 15 Trustee and constitutes a legal, valid and binding obligation of the Trustee enforceable against the Trustee in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at the time it was law).
(iv) The Certificates have been duly executed and delivered, had authenticated by the power and authority to execute and deliver the Purchase Agreement, the Capitalized Interest Agreement and the Pooling and Servicing Agreement and to consummate the transactions contemplated herein and therein;Trustee.
(cv) No consent, approval, authorization or order of, or filing with, any California or federal governmental agency or body or any court is required Neither the execution nor the delivery by Onyx to perform the transactions contemplated by Trustee of the Pooling and Servicing Agreement, the CapitalizedSupplement and the Credit Enhancement Agreement nor the consummation of any of the transactions contemplated thereby require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee.
(vi) The execution and delivery of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement by the Trustee and the performance by the Trustee of their respective terms do not conflict with or result in a violation of (x) any law or regulation of any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee, or (y) the Certificate of Incorporation or By- laws of the Trustee.
(i) The Underwriter shall be named as recipient or shall have received reliance letters, if applicable, with respect to any opinions delivered to the Bank by counsel of the Credit Enhancement Provider, if any.
(j) The Underwriter shall have received evidence satisfactory to it that the Certificates shall be rated in accordance with the applicable Terms Agreement by the Rating Agency.
(k) The Underwriter shall have received a certificate of a Vice President or other proper officer of the Servicer, dated the Closing Date, in which such officer, to the best of his or her knowledge, shall state that the representations and warranties of the Servicer in the Pooling and Servicing Agreement and the Supplement are true and correct.
(l) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter in all material respects and the Underwriter and counsel for the Underwriter shall have received such information, certificates and documents as the Underwriter or counsel for the Underwriter may reasonably request. If any of the conditions specified in this Section 7 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 their counsel, this Agreement and all obligations of the Underwriter hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Bank in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation ------------------------------------------------ obligations of the Underwriter to purchase and pay for Certificates on the Certificates will Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company Bank contained herein, to the accuracy of the written statements of officers of the Company Bank made in any certificates pursuant to the provisions terms hereof, to the performance by the Company Bank of its obligations hereunder and under the applicable Terms Agreement and to the following additional conditions precedentconditions:
(ia) On The Final Prospectus shall have been filed with the Commission pursuant to Rule 424 in the manner and within the applicable time period prescribed for such filing by the Chase Securities Inc. September 15, 1997 Page 13 rules and regulations of the Commission under the Act and in accordance with Section 5(a) of this Agreement; and, as of the Closing Date, no stop order suspending the effectiveness of any Registration Statement shall have been issued, and no proceedings for such purpose shall have been instituted or prior threatened by the Commission; and all requests for additional information from the Commission with respect to any Registration Statement shall have been complied with to the reasonable satisfaction of the Underwriter.
(b) Subsequent to the date of this Agreement, the Underwriter shall have received a letter, dated the date of this Agreement, of Coopers & Lybrxxx xxx substantially in the form heretofore agreed, which letter shall be in form and substance agreed to by the Underwriter.
(ii) If the Registration Statement has not become effective prior to the date of this Agreement, unless the Underwriter agrees in writing to a later time, the Registration Statement shall have become effective not later than (A) 6:00 p.m., New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 12:00 noon, New York City time, on such date or (B) 3:00 p.m. on the business day following the day on which the public offering price was deter mined, if such determination occurred after 12:00 noon, 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 shall 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.
(iii) Subsequent to the execution and delivery of this Agreement, there shall not have not occurred (ai) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or Onyx which, in the reasonable judgment of the Underwriter Bank which materially impairs the investment quality of the Certificates; (bii) any suspension or material limitation of trading in of securities generally on the New York Stock Exchange or the American Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of Onyx on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; (ciii) a declaration of a general moratorium on commercial banking activities in New York by either Federal or New York State authorities; or (iv) any banking moratorium declared by Federal, New York or California authori- ties; (d) any material outbreak or material escalation declaration of major hostilities or any other substantial national or international calamity or emergency ifcrisis the effect of which on the financial markets of the United States is such as to make it, in the reasonable judgment of the Underwriter, impracticable to market the effect of any such outbreak, escalation, calamity or emergency Certificates on the United States financial markets makes it impracticable or inadvisable to proceed with completion of terms specified herein and the sale of, and any payment for, the Certificatesapplicable Terms Agreement.
(ivc) The Underwriter shall have received an opiniona certificate of a Vice President or other proper officer of the Bank, dated the Closing Date, of O'Melveny & Myerx XXX, counsel of the Company, substantially to the effect that:
(a) The Company (1) is duly incorporated and is validly existing and in good standing under the laws of the State of Delaware, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts;
(b) The Company has, or at the time which such agreement was executed and delivered, had, the corporate power and corporate authority to execute and deliver this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement and to consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with, any California, Delaware or federal governmental agency or body or any court is or was required by the Company to perform the transactions contemplated by this Agreement, Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement except for (1) filing of a Uniform Commercial Code financing statement in the State of
(d) None of the execution, delivery and performance by the Company of this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement, the transfer of the Contracts to the Trust, the assignment of the security interests of the Company in the Financed Vehicles, the issuance and sale of the Certificates or the consummation of any other of the transactions contemplated herein or in the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement conflicts or will conflict with, has resulted or will result in a breach, violation or acceleration of any of the terms of, or has constituted or will constitute a default under, the By-Laws or the Certificate of Incorporation of the Company, as amended, orofficer, to the best of such counsel's his knowledge, any rule, order, statute or regulation known to such counsel to be currently applicable to shall state that (i) the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or the terms of any material indenture or other material agreement or instrument known to such counsel to which the Company is a party or by which it or its properties are bound;
(e) To the best knowledge of such counsel, after due inquiry, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of this Agreement, the Pooling representations and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement or the Certificates, (2) seeking to prevent the 17 issuance warranties of the Certificates or the consummation of any of the transactions contemplated by Bank in this Agreement, the Pooling Agreement are true and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement (3) seeking adversely to affect the federal income tax at tributes of the Certificates as described in the Prospectus under the headings "Prospectus Summary -- Tax Status" and "Certain Tax Consequences";
(f) This Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement have each been duly authorized, executed and delivered by the Company;
(g) The Contracts constitute "chattel paper" as defined in Section 9-105(a)(2) of the Uniform Commercial Code of the State of California;
(h) The statements in the Prospectus under the caption "Certain Legal Aspects of the Contracts," and "ERISA Considerations" to the extent they constitute matters of California or federal law or legal conclusions, are correct in all material respects;
, (iii) The Certificates have been duly the Bank has complied with all agreements and validly authorized and, when executed, authenticated and issued in accordance with the terms of the Pooling and Servicing Agreement, and delivered satisfied all conditions on its part to and paid for by the Underwriter pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled performed or satisfied at or prior to the benefits of the Pooling and Servicing Agreement;
Closing Date, (jiii) Assuming the authorization, execution and delivery thereof by the Trustee and the Servicer with respect to the Pooling and Servicing Agreement, and by Onyx with respect to Purchase Agreement, the Capitalized Interest Agreement and the Insurer with respect to the Insurance Agreement, each such agreement constitutes the legal, valid and binding agreement of the Company, enforceable against the Company in 18 accordance with its terms, subject, as to enforcement, to (1) the effect of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws of general application relating to or affecting creditors' rights generally (2) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and (3) the unenforceability under certain circumstances of provisions indemnifying a party against liability where such indemnification is contrary to public policy;
(k) The Registration Statement became effective under the Act as of the date and time specified in such opinion; after due inquiry, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the a Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending threatened by the Commission and (iv) the Final Prospectus does not contain any untrue statement of a material fact or contemplated 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 which they were made, not misleading.
(d) The Bank shall have furnished to the Act; Underwriter the opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Bank, dated the Closing Date, in substantially the forms attached hereto as Exhibits 1 through 3, with only such changes as shall be reasonably satisfactory to the Underwriter.
(e) The Underwriter shall have received from Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriter, one or more opinions, each dated the Closing Date, with respect to the validity of the Certificates, the Initial Registration Statement, the Additional Registration Statement (if any), the Final Prospectus, certain matters of the Uniform Commercial Code, as adopted in the State of Delaware, and each amendment thereof such other related matters as the Underwriter may reasonably require, and the Bank shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters.
(f) At the date of the applicable Terms Agreement and at the Closing Date, Price Waterhouse LLP (or supplement thereto such other independent public accountants as shall be named in the applicable Terms Agreement), certified independent public accountants for the Bank, shall have furnished to the Underwriter a letter or letters, dated respectively as of its Effective Date the date of the applicable Terms Agreement and the Prospectus as of its date of issuance appeared on its face to be appropriately responsive in all material respects to the applicable requirements Closing Date confirming that they are certified independent public accountants within the meaning of the Securities Act and the Rules and RegulationsExchange Act, and such counsel need not opine as the respective applicable published rules and regulations thereunder and substantially in the form heretofore agreed and otherwise in form and in substance satisfactory to the financial statements Underwriter and related notes, schedules and other financial and statistical data included therein;counsel for the Underwriter.
(lg) The CertificatesUnderwriter shall receive evidence satisfactory to them that, on or before the Closing Date, UCC-1 financing statements have been or are being filed in the office of the Secretary of State of the State of Delaware, reflecting the interest of the Trustee in the Receivables and the proceeds thereof.
(h) The Underwriter shall have received from Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to the Trustee, an opinion, dated the Closing Date, to the effect that:
(i) The Trustee has been duly organized and is validly existing as a banking corporation under the laws of New York and has the corporate power and authority to conduct business and affairs as a trustee.
(ii) The Trustee has the corporate power and authority to perform the duties and obligations of trustee under, and to accept the trust contemplated by, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement Supplement and the Insurance Agreement conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus;
(m) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended; and
(n) The Trust is not now, and immediately following the sale of the Certificates pursuant to this Agreement will not be, 19 required to be registered under the Investment Company Act of 1940, as amended. In addition, such counsel shall opine as to certain matters relating to the acquisition by the Company of a perfected first priority security interest in the vehicles financed by motor vehicle installment loans made by the Company. In rendering such 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 and public officials. References to the Prospectus in this paragraph (iv) include any supplements theretoCredit Enhancement Agreement.
(viii) The Underwriter shall have received an opinion, dated the Closing Date, Each of O'Melveny & Myerx XXX, counsel to Onyx, substantially to the effect that:
(a) Onyx (1) is duly incorporated and is validly existing and in good standing under the laws of the State of California, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts;
(b) Onyx has the corporate power and corporate authority to execute and deliver the Pooling and Servicing Agreement, the Capitalized Interest Agreement Supplement and the Purchase Credit Enhancement Agreement has been duly authorized, executed, and Chase Securities Inc. September 15, 1997 Page 15 delivered by the Trustee and constitutes a legal, valid and binding obligation of the Trustee enforceable against the Trustee in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at the time it was law).
(iv) The Certificates have been duly executed and delivered, had authenticated by the power and authority to execute and deliver the Purchase Agreement, the Capitalized Interest Agreement and the Pooling and Servicing Agreement and to consummate the transactions contemplated herein and therein;Trustee.
(cv) No consent, approval, authorization or order of, or filing with, any California or federal governmental agency or body or any court is required Neither the execution nor the delivery by Onyx to perform the transactions contemplated by Trustee of the Pooling and Servicing Agreement, the CapitalizedSupplement and the Credit Enhancement Agreement nor the consummation of any of the transactions contemplated thereby require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action with respect to, any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee.
(vi) The execution and delivery of the Pooling and Servicing Agreement, the Supplement and the Credit Enhancement Agreement by the Trustee and the performance by the Trustee of their respective terms do not conflict with or result in a violation of (x) any law or regulation of any governmental authority or agency under any existing federal or state law governing the banking or trust powers of the Trustee, or (y) the Certificate of Incorporation or By-laws of the Trustee.
(i) The Underwriter shall be named as recipients or shall have received reliance letters, if applicable, with respect to any opinions delivered to the Bank by counsel of the Credit Enhancement Provider, if any.
(j) The Underwriter shall have received evidence satisfactory to them that the Certificates shall be rated in accordance with the applicable Terms Agreement by the Rating Agency.
(k) The Underwriter shall have received a certificate of a Vice President or other proper officer of the Servicer, dated the Closing Date, in which such officer, to the best of his or her knowledge, shall state that the representations and warranties of the Servicer in the Pooling and Servicing Agreement and the Supplement are true and correct. Chase Securities Inc. September 15, 1997 Page 16
(l) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter in all material respects and the Underwriter and counsel for the Underwriter shall have received such information, certificates and documents as the Underwriter or counsel for the Underwriter may reasonably request. If any of the conditions specified in this Section 7 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 their counsel, this Agreement and all obligations of the Underwriter hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Bank in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to purchase and pay for the Certificates Junior Notes will be subject to the accuracy of the representations and warranties on the part of the Company hereinBanks herein on the date hereof and as of the Closing Date, to the accuracy of the written statements of officers of the Company Banks made pursuant to the provisions hereof, to the performance by the Company Banks of its their respective obligations hereunder and to the following additional conditions precedent:
(ia) On or prior to the date of this Agreement, hereof the Class B and Class C Underwriter shall have received a letterletter (a "Procedures Letter"), dated the date of this Agreement, Agreement of Coopers & Lybrxxx xxx substantially each of Price Waterhouse LLP and Xxxxxx Xxxxxxxx verifying the accuracy of such financial and statistical data contained in the form heretofore agreedProspectus as the Class B and Class C Underwriter shall deem reasonably advisable. In addition, which if any amendment or supplement to the Prospectus made after the date hereof contains financial or statistical data, the Class B and Class C Underwriter shall have received a letter shall be in form dated the Closing Date confirming each Procedures Letter and substance agreed to by the Underwriter.providing additional comfort on such new data;
(iib) If the Registration Statement has not become effective prior to the date of this Agreement, unless the Underwriter agrees in writing to a later time, the Registration Statement The Prospectus shall have become effective not later than (A) 6:00 p.m., New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 12:00 noon, New York City time, on such date or (B) 3:00 p.m. on the business day following the day on which the public offering price was deter mined, if such determination occurred after 12:00 noon, 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 shall be 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.;
(iiic) Subsequent to the execution and delivery of this Agreement, there shall not have not occurred (ai) any change, or any development involving a prospective change, in or affecting particularly the business or properties of any of the Company Banks, The Chase Manhattan Corporation, CITSF or Onyx The CIT Group, Inc. which, in the reasonable judgment of the Underwriter Underwriter, materially impairs the investment quality of the CertificatesJunior Notes or makes it impractical to market the Junior Notes; (bii) 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 Onyx 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; (ciii) any banking moratorium declared by Federal, Federal or New York authorities; or California authori- ties; (div) 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 Class B and Class C 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, of and any payment for, for the Certificates.Junior Notes;
(ivd) The Class B and Class C Underwriter shall have received opinions, dated the Closing Date and reasonably satisfactory, when taken together, in form and substance to the Class B and Class C Underwriter, of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Banks, Xxxxxxxx, Xxxxxx & Finger, special counsel to the Trust, and such other counsel otherwise reasonably acceptable to the Class B and Class C Underwriter, with respect to such matters as are customary for the type of transaction contemplated by this Agreement;
(e) The Class B and Class C Underwriter shall have received an opinionopinion or opinions of Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel to the Banks, dated the Closing DateDate and satisfactory in form and substance to the Class B and Class C Underwriter, with respect to certain matters relating to the transfers from each Bank to the Trust of O'Melveny 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 Xxxxxxxx, Xxxxxx & Myerx XXXFinger, 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 Class B and Class C Underwriter shall have received from Xxxxxx X. Xxxxx, Senior Vice President, Secretary and General Counsel of the Servicer, such opinion or opinions, dated the Closing Date and satisfactory in form and substance to the Class B and Class C Underwriter, with respect to corporate matters;
(g) The Class B and Class C Underwriter shall have received from Xxxxxx X. Xxxxxx, counsel to the Sellers, such opinion or opinions, dated the Closing Date and satisfactory in form and substance to the Class B and Class C Underwriter, with respect to certain matters relating to the transfer to the Trust of Preferred Ship Mortgages in accordance with the Ship Mortgage Statutes and other related matters as the Class B and Class C Underwriter may require;
(h) The Class B and Class C Underwriter shall have received from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Class B and Class C Underwriter, such opinion or opinions, dated the Closing Date and satisfactory in form and substance to the Class B and Class C Underwriter, with respect to the validity of the CompanyJunior Notes, substantially to the effect that:
(a) The Company (1) is duly incorporated and is validly existing and in good standing under the laws of the State of DelawareRegistration Statement, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant timesother related matters as the Class B and Class C Underwriter may require, and now has, the power, authority and legal right Banks shall have furnished to acquire, own and sell such counsel such documents as they reasonably request for the Contractspurpose of enabling them to pass upon such matters;
(bi) The Company hasClass B and Class C Underwriter shall have received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, or at special U.S. tax counsel to the time Banks, dated the Closing Date and reasonably satisfactory in form and substance to the Class B and Class C Underwriter, with respect to such agreement was executed and delivered, had, matters as are customary for the corporate power and corporate authority to execute and deliver type of transaction contemplated by this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement and to consummate the transactions contemplated herein and therein;
(cj) No consentThe Class B and Class C Underwriter shall have received an opinion of Xxxxx & Xxxxxxx, approvalP.C., authorization or order ofspecial Oklahoma tax counsel to the Banks, or filing withdated the Closing Date and satisfactory in form and substance to the Class B and Class C Underwriter, any Californiawith respect to such matters as are customary for the type of transaction covered by this Agreement;
(k) The Class B and Class C Underwriter shall have received an opinion of Xxxxxx & Xxxxxxx LLP, Delaware or federal governmental agency or body or any court is or was required by counsel to the Company Indenture Trustee, dated the Closing Date and satisfactory in form and substance to perform the Class B and Class C Underwriter with respect to such matters as are customary for the transactions contemplated by this Agreement; In rendering such opinions, Pooling and Servicing Agreement, counsel to the Purchase Agreement, Indenture Trustee may rely on the Capitalized Interest Agreement or the Insurance Agreement except for (1) filing of a Uniform Commercial Code financing statement in the State of
(d) None opinion of the execution, delivery and performance by the Company of this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement, the transfer office of the Contracts general counsel to the Trust, the assignment of the security interests of the Company in the Financed Vehicles, the issuance and sale of the Certificates or the consummation of any other of the transactions contemplated herein or in the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement conflicts or will conflict with, has resulted or will result in a breach, violation or acceleration of any of the terms of, or has constituted or will constitute a default under, the By-Laws or the Certificate of Incorporation of the Company, as amended, or, to the best of such counsel's knowledge, any rule, order, statute or regulation known to such counsel to be currently applicable to the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or the terms of any material indenture or other material agreement or instrument known to such counsel to which the Company is a party or by which it or its properties are bound;
(e) To the best knowledge of such counsel, after due inquiry, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement or the Certificates, (2) seeking to prevent the 17 issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement or the Insurance Agreement (3) seeking adversely to affect the federal income tax at tributes of the Certificates as described in the Prospectus under the headings "Prospectus Summary -- Tax Status" and "Certain Tax Consequences";
(f) This Agreement, the Pooling and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement have each been duly authorized, executed and delivered by the Company;
(g) The Contracts constitute "chattel paper" as defined in Section 9-105(a)(2) of the Uniform Commercial Code of the State of California;
(h) The statements in the Prospectus under the caption "Certain Legal Aspects of the Contracts," and "ERISA Considerations" to the extent they constitute matters of California or federal law or legal conclusions, are correct in all material respects;
(i) The Certificates have been duly and validly authorized and, when executed, authenticated and issued in accordance with the terms of the Pooling and Servicing Agreement, and delivered to and paid for by the Underwriter pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of the Pooling and Servicing Agreement;
(j) Assuming the authorization, execution and delivery thereof by the Trustee and the Servicer with respect to the Pooling and Servicing Agreement, and by Onyx with respect to Purchase Agreement, the Capitalized Interest Agreement and the Insurer with respect to the Insurance Agreement, each such agreement constitutes the legal, valid and binding agreement of the Company, enforceable against the Company in 18 accordance with its terms, subject, as to enforcement, to (1) the effect of bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws of general application relating to or affecting creditors' rights generally (2) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and (3) the unenforceability under certain circumstances of provisions indemnifying a party against liability where such indemnification is contrary to public policy;
(k) The Registration Statement became effective under the Act as of the date and time specified in such opinion; after due inquiry, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; the Registration Statement, and each amendment thereof or supplement thereto as of its Effective Date and the Prospectus as of its date of issuance appeared on its face to be appropriately responsive in all material respects to the applicable requirements of the Securities Act and the Rules and Regulations, and such counsel need not opine as to the financial statements and related notes, schedules and other financial and statistical data included therein;Indenture Trustee.
(l) The Certificates, the Pooling Class B and Servicing Agreement, the Purchase Agreement, the Capitalized Interest Agreement and the Insurance Agreement conform in all material respects Class C Underwriter shall have received an opinion of counsel to the descriptions thereof contained Owner Trustee, and such other counsel reasonably satisfactory to the Class B and Class C Underwriter and its counsel, dated the Closing Date and satisfactory in form and substance to the Registration Statement Class B and Class C Underwriter, with respect to such matters as are customary for the Prospectustype of transaction contemplated by this Agreement;
(m) The Pooling Class B Notes have been rated at least "AA" by Standard & Poor's, "A1" by Xxxxx'x and Servicing Agreement is not required to be qualified under "AA" by Xxxx & Xxxxxx and the Trust Indenture Act Class C Notes have been rated at least "A-" by Standard & Poor's, "Baa2" by Xxxxx'x and "A-" by Xxxx & Xxxxxx. Each class of 1939, as amended; and
(n) The Trust is not now, and immediately following the sale of the Certificates pursuant to this Agreement will not be, 19 required to be registered under the Investment Company Act of 1940, as amended. In addition, such counsel shall opine as to certain matters relating to the acquisition by the Company of a perfected first priority security interest in the vehicles financed by motor vehicle installment loans made by the Company. In rendering such 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 and public officials. References to the Prospectus in this paragraph (iv) include any supplements thereto.
(v) The Underwriter Senior Notes shall have received an opinionbeen rated "AAA" by Standard & Poor's, dated the Closing Date, of O'Melveny Aaa by Xxxxx'x and "AAA" by Xxxx & Myerx XXX, counsel to Onyx, substantially to the effect that:
(a) Onyx (1) is duly incorporated and is validly existing and in good standing under the laws of the State of California, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the ContractsXxxxxx;
(b) Onyx has the corporate power and corporate authority to execute and deliver the Pooling and Servicing Agreement, the Capitalized Interest Agreement and the Purchase Agreement and at the time it was executed and delivered, had the power and authority to execute and deliver the Purchase Agreement, the Capitalized Interest Agreement and the Pooling and Servicing Agreement and to consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with, any California or federal governmental agency or body or any court is required by Onyx to perform the transactions contemplated by the Pooling and Servicing Agreement, the Capitalized
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