Conditions to the Obligations of Underwriters. The obligation of each Underwriter to purchase the Offered Securities to be purchased by it shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of the Company made in any officer's certificate pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions: (a) No stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for that purpose shall be pending or, to the knowledge of the Company, threatened, and the Prospectus Supplement shall have been filed or transmitted for filing by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424 under the Act. (b) The Company shall have furnished to the Underwriters a certificate, dated the Closing Date, of the Company, signed by a vice president of the Company, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, this Agreement [the Pooling and Servicing Agreement, the Indenture or the Trust Agreement, as applicable] and that: (i) The representations and warranties of the Company in this Agreement [the Pooling and Servicing Agreement, the Indenture and the Trust Agreement] are true and correct in all material respect on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted and are pending or, to his knowledge, have been threatened as of the Closing Date; (iii) any Computational Materials or ABS Term Sheets incorporated therein by reference) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) Since ___________, there has been no material adverse change (not in the ordinary course of business) in connection with the Company. (c) The Company shall have furnished or caused to have been furnished to the Underwriters a certificate, dated the Closing Date, of the Seller, signed by a vice president or an assistant vice president of the Seller, to the effect that the signer of such certificate has carefully examined the Prospectus and nothing has come to the attention of such person that would lead him to believe that the Prospectus contains any untrue statement of a material fact with respect to the Seller or the Assets or omits to state any material fact with respect to the Seller or the Assets necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (d) The Company shall have furnished to you and opinion, dated the Closing Date, of __________________. counsel to the Company, substantially to the effect that: (i) The Registration Statement and any amendments thereto have become effective under the Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and not withdrawn, no proceedings for that purpose have been instituted or threatened and not terminated; and the Registration Statement, the Prospectus and each amendment or supplement thereto, as of their respective effective or issue dates (other than the financial and statistical information contained therein as to which such counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission thereunder; (ii) To the best knowledge of such counsel, there are not material contracts, indentures or other documents of a character required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto; (iii) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of
Appears in 2 contracts
Samples: Underwriting Agreement (Union Planters Mortgage Finance Corp), Underwriting Agreement (Union Planters Mortgage Finance Corp)
Conditions to the Obligations of Underwriters. The obligation of each Underwriter to purchase the Offered Securities Underwritten Public Certificates to be purchased by it as indicated in the related Pricing Letter and as provided herein shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company CWALT contained herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of the Company CWALT made in any officer's certificate pursuant to the provisions hereof, to the performance in all material respects by the Company CWALT of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be in effect, have been issued and no proceedings for that purpose shall have been instituted and be pending or, to the knowledge of the Company, or shall have been threatened, and the Prospectus Supplement shall have been filed or transmitted mailed for filing by means reasonably calculated to result in a filing with the Commission not later than required pursuant to Rule 424 under the Actrules and regulations of the Commission.
(b) The Company CWALT shall have furnished to the Underwriters a certificate, dated the Closing Date, of the CompanyCWALT, signed by a vice president of the CompanyCWALT, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, Prospectus and this Agreement [the Pooling and Servicing Agreement, the Indenture or the Trust Agreement, as applicable] and that:
(i) The representations and warranties of the Company in this Agreement [the Pooling and Servicing Agreement, the Indenture and the Trust Agreement] CWALT herein are true and correct in all material respect respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company CWALT has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted and are pending or, to his knowledge, have been threatened as of the Closing Date;; and
(iii) any Computational Materials Nothing has come to the attention of such person that would lead him to believe that the Prospectus at the date thereof and at the date hereof contained or ABS Term Sheets incorporated therein by reference) contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since ___________, there has been no material adverse change (not in the ordinary course of business) in connection with the Company.
(c) The Company [CHL] shall have furnished or caused to have been furnished to the Underwriters a certificate, dated the Closing Date, of the Seller[CHL], signed by a vice president or an assistant vice president of the Seller[CHL], to the effect that (i) the signer of such certificate has carefully examined the Prospectus and nothing has come to the attention of such person that would lead him to believe that the Prospectus contains any untrue statement of a material fact with respect to the Seller [CHL] or the Assets Mortgage Loans or omits to state any material fact with respect to the Seller [CHL] or the Assets Mortgage Loans necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading and (ii) [CHL] has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date under the Pooling and Servicing Agreement, the Indemnification Agreement, the Insurance Agreements or this Agreement.
(d) The Company CWALT shall have furnished to you and an opinion, dated the Closing Date, of __________________. __, special counsel to the CompanyCWALT, substantially to the effect that:
(i) The Registration Statement and any amendments thereto have become effective under the Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and not withdrawn, no proceedings for that purpose have been instituted or threatened and not terminated; and the Registration Statement, the Prospectus and each amendment or supplement thereto, as of their respective initial effective or issue dates (other than the financial and statistical information contained therein as to which such counsel need express no opinion)therein, complied as to form in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission thereunder;
(ii) To the best knowledge of such counsel, there are not no material contracts, indentures or other documents of a character required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto;
(iii) Assuming that the Pooling and Servicing Agreement and this Agreement have each been duly authorized, executed and delivered by the parties thereto, each constitutes a valid, legal and binding agreement of CWALT, the Master Servicer and [CHL] in the case of the Pooling and Servicing Agreement and of CWALT in the case of this Agreement and the Insurance Agreements enforceable against CWALT, the Master Servicer or [CHL], as applicable, in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and to general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law;
(iv) Assuming that the Certificates have been duly and validly authorized, executed and authenticated in the manner contemplated in the Pooling and Servicing Agreement, when delivered and paid for by you as provided in this Agreement, the Certificates will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement;
(v) The Certificates and the Pooling and Servicing Agreement conform in all material respects to the descriptions thereof contained in the Prospectus;
(vi) The statements in the Prospectus Supplement, under the headings "Material Federal Income Tax Consequences," "ERISA Considerations" and "Summary--Legal Investment," and in the Prospectus under "Material Federal Income Tax Consequences," "ERISA Considerations," and "Legal Investment" to the extent that they constitute matters of New York or federal law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects;
(vii) The Certificates indicated under the heading "Summary--Legal Investment" in the Prospectus Supplement to be "mortgage related securities" will be mortgage related securities, as defined in Section 3(a)(41) of the Exchange Act, so long as such Certificates are rated in one of the two highest rating categories by at least one nationally recognized statistical rating organization;
(viii) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund created by the Pooling and Servicing Agreement is not required to be registered under the Investment Company Act of 1940, as amended; and
(ix) Each REMIC as described in the Pooling and Servicing Agreement will qualify as a "real estate mortgage investment conduit" ("REMIC") within the meaning of Section 860D of the Internal Revenue Code of 1986, as amended (the "Code"), (b) the Regular Certificates will be treated as regular interests in the Master REMIC, and (c) the Class A-R Certificate will represent ownership of the sole class of residual interest in each REMIC created pursuant to the Pooling and Servicing Agreement. Such counsel shall also state that nothing has come to its attention that would lead such counsel to believe that the Registration Statement, at the time it initially became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the date of the Prospectus Supplement, and on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to (i) financial and statistical information contained therein or (ii) any description in the Prospectus of any third party providing credit enhancement to the Certificates. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement and the Pooling and Servicing Agreement. Such opinion may be qualified as an opinion only on the laws of the State of New York and the federal law of the United States. To the extent that such firm relies upon the opinion of other counsel in rendering any portion of its opinion, the opinion of such other counsel shall be attached to and delivered with the opinion of such firm that is delivered to you.
(e) CWALT shall have furnished to the Underwriters an opinion, dated the Closing Date, of counsel to CWALT (who may be an employee of CWALT or of an affiliate of CWALT), to the effect that:
(i) CWALT has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly qualified to do business in, and is in good standing as a foreign corporation under the laws of, the State of California;
(ii) The Certificates have been duly authorized and executed and, assuming authentication and delivery in the manner contemplated in the Pooling and Servicing Agreement, are validly issued and outstanding, and upon delivery by CWALT of the Certificates to be purchased by the Underwriters and payment by the Underwriters of the purchase price therefor in the manner contemplated by this Agreement, the Underwriters will acquire such Certificates free and clear of any lien, pledge, encumbrance or other security interest other than one created or granted by any Underwriter;
(iii) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by CWALT;
(iv) This Agreement, the Insurance Agreements and the Indemnification Agreement have each been duly authorized, executed and delivered by CWALT;
(v) No consent, approval, authorization or order of any [California] or federal governmental agency or body or, to the best knowledge of such counsel, any [California] or federal court is required for the consummation by CWALT of the transactions contemplated by the terms of this Agreement, the Insurance Agreements or the Pooling and Servicing Agreement except such as may be required under the "blue sky" or state securities laws of any jurisdiction in connection with the offering, sale or acquisition of the Certificates, any recordations of the assignment of the mortgage loans to the Trustee (to the extent such recordations are required pursuant to the Pooling and Servicing Agreement) that have not yet been completed and such other approvals as have been obtained;
(vi) The sale of the Certificates to be purchased by the Underwriters pursuant to this Agreement and the consummation of any of the transactions contemplated by the terms of the Pooling and Servicing Agreement, the Indemnification Agreement or this Agreement do not conflict with or result in a breach or violation of any material term or provision of, or constitute a default under, the certificate of incorporation of CWALT, or any indenture or other agreement or instrument to which CWALT is a party or by which it is bound, or any [California] or federal statute or regulation applicable to CWALT or, to the best knowledge of such counsel, an order or decree of any [California] or federal court, regulatory body, administrative agency or governmental body having jurisdiction over CWALT; and
(vii) There are no legal or governmental actions, investigations or proceedings pending to which CWALT is a party, or, to the best knowledge of such counsel, threatened against CWALT, (A) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, the Indemnification Agreement, the Insurance Agreements or the Certificates, (B) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Pooling and Servicing Agreement, the Indemnification Agreement or the Insurance Agreements, (C) which might materially and adversely affect the performance by CWALT of its obligations under, or the validity or enforceability of, this Agreement, the Pooling and Servicing Agreement, the Indemnification Agreement, the Insurance Agreements or the Certificates or (D) seeking to affect adversely the federal income tax attributes of the Certificates as described in the Prospectus under the heading "Material Federal Income Tax Consequences." For purposes of the foregoing, such counsel may state that it has not regarded any legal or governmental actions, investigations or proceedings to be "threatened" unless the potential litigant or governmental authority has manifested to the legal department of CWALT a present intention to initiate such proceedings. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Insurance Agreements, the Indemnification Agreement and the Pooling and Servicing Agreement. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than CWALT or its affiliates. Such opinion may be qualified as an opinion only on the laws of the States of Delaware and California and the federal law of the United States. To the extent that such counsel relies upon the opinion of other counsel in rendering any portion of its opinion, the opinion of such other counsel shall be attached to and delivered with the opinion of such counsel that is delivered to the Underwriters.
(f) [CHL] shall have furnished to the Underwriters an opinion, dated the Closing Date, of counsel to [CHL] (who may be an employee of [CHL]), to the effect that:
(i) [CHL] has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of [New York];
(ii) The Pooling and Servicing Agreement and the Insurance Agreements have each been duly authorized, executed and delivered by [CHL];
(iii) No consent, approval, authorization or order of any [California] or federal governmental agency or body or, to the best knowledge of such counsel, any [California] or federal court is required for the consummation by [CHL] of the transactions contemplated by the terms of the Pooling and Servicing Agreement except any such as may be required under the "blue sky" or state securities laws of any jurisdiction in connection with the offering, sale or acquisition of the Certificates, any recordations of the assignment of the Mortgage Loans evidenced by the Certificates to the Trustee (to the extent such recordations are required pursuant to the Pooling and Servicing Agreement) that have not yet been completed and any approvals as have been obtained;
(iv) The consummation of any of the transactions contemplated by the terms of the Pooling and Servicing Agreement or the Insurance Agreements do not conflict with or result in a breach or violation of any material term or provision of, or constitute a default under, the charter or bylaws of [CHL], or, to the best knowledge of such counsel, any indenture or other agreement or instrument to which [CHL] is a party or by which it is bound, any [New York] or federal law, statute or regulation applicable to [CHL] or, to the best knowledge of such counsel, any order of any [California] or federal court, regulatory body, administrative agency or governmental body having jurisdiction over [CHL]; and
(v) There are no legal or governmental actions, investigations or proceedings pending to which [CHL] is a party, or, to the best knowledge of such counsel, threatened against [CHL], (A) asserting the invalidity of the Pooling and Servicing Agreement or the Insurance Agreements or (B) which might materially and adversely affect the performance by [CHL] of its obligations under, or the validity or enforceability of, the Pooling and Servicing Agreement or the
Appears in 1 contract
Samples: Underwriting Agreement (Cwalt Inc)
Conditions to the Obligations of Underwriters. The obligation of each Underwriter to purchase the Offered Securities Underwritten Public Certificates to be purchased by it as indicated in the related Pricing Letter and as provided herein shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company CWMBS contained herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of the Company CWMBS made in any officer's certificate pursuant to the provisions hereof, to the performance in all material respects by the Company CWMBS of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be in effect, have been issued and no proceedings for that purpose shall have been instituted and be pending or, to the knowledge of the Company, or shall have been threatened, and the Prospectus Supplement shall have been filed or transmitted mailed for filing by means reasonably calculated to result in a filing with the Commission not later than required pursuant to Rule 424 under the Actrules and regulations of the Commission.
(b) The Company CWMBS shall have furnished to the Underwriters a certificate, dated the Closing Date, of the CompanyCWMBS, signed by a vice president of the CompanyCWMBS, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, Prospectus and this Agreement [the Pooling and Servicing Agreement, the Indenture or the Trust Agreement, as applicable] and that:
(i) The representations and warranties of the Company in this Agreement [the Pooling and Servicing Agreement, the Indenture and the Trust Agreement] CWMBS herein are true and correct in all material respect respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company CWMBS has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted and are pending or, to his knowledge, have been threatened as of the Closing Date;; and
(iii) any Computational Materials Nothing has come to the attention of such person that would lead him to believe that the Prospectus at the date thereof and at the date hereof contained or ABS Term Sheets incorporated therein by reference) contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since ___________, there has been no material adverse change (not in the ordinary course of business) in connection with the Company.
(c) The Company [CHL] shall have furnished or caused to have been furnished to the Underwriters a certificate, dated the Closing Date, of the Seller[CHL], signed by a vice president or an assistant vice president of the Seller[CHL], to the effect that (i) the signer of such certificate has carefully examined the Prospectus and nothing has come to the attention of such person that would lead him to believe that the Prospectus contains any untrue statement of a material fact with respect to the Seller [CHL] or the Assets Mortgage Loans or omits to state any material fact with respect to the Seller [CHL] or the Assets Mortgage Loans necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading and (ii) [CHL] has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date under the Pooling and Servicing Agreement, the Indemnification Agreement, the Insurance Agreements or this Agreement.
(d) The Company CWMBS shall have furnished to you and an opinion, dated the Closing Date, of __________________. __, special counsel to the CompanyCWMBS, substantially to the effect that:
(i) The Registration Statement and any amendments thereto have become effective under the Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and not withdrawn, no proceedings for that purpose have been instituted or threatened and not terminated; and the Registration Statement, the Prospectus and each amendment or supplement thereto, as of their respective initial effective or issue dates (other than the financial and statistical information contained therein as to which such counsel need express no opinion)therein, complied as to form in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission thereunder;
(ii) To the best knowledge of such counsel, there are not no material contracts, indentures or other documents of a character required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto;
(iii) Assuming that the Pooling and Servicing Agreement and this Agreement have each been duly authorized, executed and delivered by the parties thereto, each constitutes a valid, legal and binding agreement of CWMBS, the Master Servicer and [CHL] in the case of the Pooling and Servicing Agreement and of CWMBS in the case of this Agreement and the Insurance Agreements enforceable against CWMBS, the Master Servicer or [CHL], as applicable, in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and to general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law;
(iv) Assuming that the Certificates have been duly and validly authorized, executed and authenticated in the manner contemplated in the Pooling and Servicing Agreement, when delivered and paid for by you as provided in this Agreement, the Certificates will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement;
(v) The Certificates and the Pooling and Servicing Agreement conform in all material respects to the descriptions thereof contained in the Prospectus;
(vi) The statements in the Prospectus Supplement, under the headings "Material Federal Income Tax Consequences," "ERISA Considerations" and "Summary--Legal Investment," and in the Prospectus under "Material Federal Income Tax Consequences," "ERISA Considerations," and "Legal Investment" to the extent that they constitute matters of New York or federal law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects;
(vii) The Certificates indicated under the heading "Summary--Legal Investment" in the Prospectus Supplement to be "mortgage related securities" will be mortgage related securities, as defined in Section 3(a)(41) of the Exchange Act, so long as such Certificates are rated in one of the two highest rating categories by at least one nationally recognized statistical rating organization;
(viii) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund created by the Pooling and Servicing Agreement is not required to be registered under the Investment Company Act of 1940, as amended; and
(ix) Each REMIC as described in the Pooling and Servicing Agreement will qualify as a "real estate mortgage investment conduit" ("REMIC") within the meaning of Section 860D of the Internal Revenue Code of 1986, as amended (the "Code"), (b) the Regular Certificates will be treated as regular interests in the Master REMIC, and (c) the Class A-R Certificate will represent ownership of the sole class of residual interest in each REMIC created pursuant to the Pooling and Servicing Agreement. Such counsel shall also state that nothing has come to its attention that would lead such counsel to believe that the Registration Statement, at the time it initially became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the date of the Prospectus Supplement, and on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to (i) financial and statistical information contained therein or (ii) any description in the Prospectus of any third party providing credit enhancement to the Certificates. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement and the Pooling and Servicing Agreement. Such opinion may be qualified as an opinion only on the laws of the State of New York and the federal law of the United States. To the extent that such firm relies upon the opinion of other counsel in rendering any portion of its opinion, the opinion of such other counsel shall be attached to and delivered with the opinion of such firm that is delivered to you.
(e) CWMBS shall have furnished to the Underwriters an opinion, dated the Closing Date, of counsel to CWMBS (who may be an employee of CWMBS or of an affiliate of CWMBS), to the effect that:
(i) CWMBS has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly qualified to do business in, and is in good standing as a foreign corporation under the laws of, the State of California;
(ii) The Certificates have been duly authorized and executed and, assuming authentication and delivery in the manner contemplated in the Pooling and Servicing Agreement, are validly issued and outstanding, and upon delivery by CWMBS of the Certificates to be purchased by the Underwriters and payment by the Underwriters of the purchase price therefor in the manner contemplated by this Agreement, the Underwriters will acquire such Certificates free and clear of any lien, pledge, encumbrance or other security interest other than one created or granted by any Underwriter;
(iii) The Pooling and Servicing Agreement has been duly authorized, executed and delivered by CWMBS;
(iv) This Agreement, the Insurance Agreements and the Indemnification Agreement have each been duly authorized, executed and delivered by CWMBS;
(v) No consent, approval, authorization or order of any [California] or federal governmental agency or body or, to the best knowledge of such counsel, any [California] or federal court is required for the consummation by CWMBS of the transactions contemplated by the terms of this Agreement, the Insurance Agreements or the Pooling and Servicing Agreement except such as may be required under the "blue sky" or state securities laws of any jurisdiction in connection with the offering, sale or acquisition of the Certificates, any recordations of the assignment of the mortgage loans to the Trustee (to the extent such recordations are required pursuant to the Pooling and Servicing Agreement) that have not yet been completed and such other approvals as have been obtained;
(vi) The sale of the Certificates to be purchased by the Underwriters pursuant to this Agreement and the consummation of any of the transactions contemplated by the terms of the Pooling and Servicing Agreement, the Indemnification Agreement or this Agreement do not conflict with or result in a breach or violation of any material term or provision of, or constitute a default under, the certificate of incorporation of CWMBS, or any indenture or other agreement or instrument to which CWMBS is a party or by which it is bound, or any [California] or federal statute or regulation applicable to CWMBS or, to the best knowledge of such counsel, an order or decree of any [California] or federal court, regulatory body, administrative agency or governmental body having jurisdiction over CWMBS; and
(vii) There are no legal or governmental actions, investigations or proceedings pending to which CWMBS is a party, or, to the best knowledge of such counsel, threatened against CWMBS, (A) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, the Indemnification Agreement, the Insurance Agreements or the Certificates, (B) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement, the Pooling and Servicing Agreement, the Indemnification Agreement or the Insurance Agreements, (C) which might materially and adversely affect the performance by CWMBS of its obligations under, or the validity or enforceability of, this Agreement, the Pooling and Servicing Agreement, the Indemnification Agreement, the Insurance Agreements or the Certificates or (D) seeking to affect adversely the federal income tax attributes of the Certificates as described in the Prospectus under the heading "Material Federal Income Tax Consequences." For purposes of the foregoing, such counsel may state that it has not regarded any legal or governmental actions, investigations or proceedings to be "threatened" unless the potential litigant or governmental authority has manifested to the legal department of CWMBS a present intention to initiate such proceedings. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Insurance Agreements, the Indemnification Agreement and the Pooling and Servicing Agreement. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than CWMBS or its affiliates. Such opinion may be qualified as an opinion only on the laws of the States of Delaware and California and the federal law of the United States. To the extent that such counsel relies upon the opinion of other counsel in rendering any portion of its opinion, the opinion of such other counsel shall be attached to and delivered with the opinion of such counsel that is delivered to the Underwriters.
(f) [CHL] shall have furnished to the Underwriters an opinion, dated the Closing Date, of counsel to [CHL] (who may be an employee of [CHL]), to the effect that:
(i) [CHL] has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of [New York];
(ii) The Pooling and Servicing Agreement and the Insurance Agreements have each been duly authorized, executed and delivered by [CHL];
(iii) No consent, approval, authorization or order of any [California] or federal governmental agency or body or, to the best knowledge of such counsel, any [California] or federal court is required for the consummation by [CHL] of the transactions contemplated by the terms of the Pooling and Servicing Agreement except any such as may be required under the "blue sky" or state securities laws of any jurisdiction in connection with the offering, sale or acquisition of the Certificates, any recordations of the assignment of the Mortgage Loans evidenced by the Certificates to the Trustee (to the extent such recordations are required pursuant to the Pooling and Servicing Agreement) that have not yet been completed and any approvals as have been obtained;
(iv) The consummation of any of the transactions contemplated by the terms of the Pooling and Servicing Agreement or the Insurance Agreements do not conflict with or result in a breach or violation of any material term or provision of, or constitute a default under, the charter or bylaws of [CHL], or, to the best knowledge of such counsel, any indenture or other agreement or instrument to which [CHL] is a party or by which it is bound, any [New York] or federal law, statute or regulation applicable to [CHL] or, to the best knowledge of such counsel, any order of any [California] or federal court, regulatory body, administrative agency or governmental body having jurisdiction over [CHL]; and
(v) There are no legal or governmental actions, investigations or proceedings pending to which [CHL] is a party, or, to the best knowledge of such counsel, threatened against [CHL], (A) asserting the invalidity of the Pooling and Servicing Agreement or the Insurance Agreements or (B) which might materially and adversely affect the performance by [CHL] of its obligations under, or the validity or enforceability of, the Pooling and Servicing Agreement or the
Appears in 1 contract
Samples: Underwriting Agreement (CWMBS Inc)
Conditions to the Obligations of Underwriters. The obligation of each Underwriter to purchase the Publicly-Offered Securities Certificates to be purchased by it as set forth on Schedule 1 annexed hereto shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Seller, the Depositor and Redwood Trust contained herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of the Company Seller, the Depositor and Redwood Trust made in any officer's ’s certificate pursuant to the provisions hereof, to the performance in all material respects by the Company Seller, the Depositor and Redwood Trust of its obligations hereunder and to the following additional conditions:
(a) : No stop order suspending the effectiveness of the Registration Statement shall be in effect, have been issued and no proceedings for that purpose shall have been instituted and be pending oror shall have been threatened, any requests for additional information on the part of the Commission (to be included in the Registration Statement or in a Prospectus or otherwise) shall have been complied with to the knowledge reasonable satisfaction of the Company, threatenedUnderwriters, and each Preliminary Prospectus and the Final Prospectus Supplement shall have been filed or transmitted for filing by means reasonably calculated to result in a filing with the Commission not later than the time the same is required to be filed or transmitted for filing pursuant to Rule 424 under the Act.
(b) The Company Regulations of the Commission. Each of the Depositor and the Seller shall have furnished to the Underwriters a certificate, dated the Closing Date, signed by the Chairman of the Company, signed by a vice president Board or the President and the principal financial or accounting officer of the Companysuch entity, to the effect that the each signer of such 192618 SEMT 2006-1 Underwriting Agreement certificate has carefully examined the Registration Statement, the Final Prospectus, each Preliminary Prospectus, the Designated Static Pool Information and this Agreement [the Pooling and Servicing Agreement, the Indenture or the Trust Agreement, as applicable] and that:
(i) The representations and warranties of the Company in this Agreement [the Pooling and Servicing Agreement, the Indenture and the Trust Agreement] made by such entity herein are true and correct in all material respect respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company such entity has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted and are pending or, to his knowledgethe knowledge of such officer, have been threatened as of the Closing Date;
(iii) any Computational Materials Nothing has come to the attention of such officer that would lead such officer to believe that either Preliminary Prospectus (excluding information with respect to the Group 1 Certificates set forth in the Preliminary Prospectus Supplement dated August 17, 2006) or ABS Term Sheets incorporated therein by referencethe Final Prospectus (including in each case, the Designated Static Pool Information) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since ___________, there has been no material adverse change (not in the ordinary course of business) in connection with the Company.
(c) The Company shall have furnished or caused to have been furnished to the Underwriters a certificate, dated the Closing Date, of the Seller, signed by a vice president or an assistant vice president of the Seller, to the effect that the signer of such certificate has carefully examined the Prospectus and nothing Nothing has come to the attention of such person officer that would lead him such officer to believe that the Prospectus any Seller Mortgage Loan Information contains any untrue statement of a material fact or, in conjunction with respect to the Seller either Preliminary Prospectus or the Assets or Final Prospectus (including in each case, the Designated Static Pool Information), omits to state any material fact with respect to the Seller or the Assets necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.. 192618 SEMT 2006-1 Underwriting Agreement Redwood Trust shall have furnished to the Underwriters a certificate, dated the Closing Date, of Redwood Trust, signed by the Chairman of the Board or President and the principal financial or accounting officer of Redwood Trust, to the effect that each signer of such certificate has carefully examined the Registration Statement, each Preliminary Prospectus, the Final Prospectus, the Designated Static Pool Information and this Agreement and that:
(dv) The Company representations and warranties of Redwood Trust herein are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and Redwood Trust has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(vi) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted and are pending or, to the knowledge of such officer, have been threatened as of the Closing Date; and
(vii) Nothing has come to the attention of such officer that would lead such officer to believe that either Preliminary Prospectus (excluding information with respect to the Group 1 Certificates set forth in the Preliminary Prospectus Supplement dated August 17, 2006) or the Final Prospectus (including in each case, the Designated Static Pool Information) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each of the Depositor and the Seller shall have furnished to you and an opinion, dated the Closing Date, of __________________. Txxxx & Txxxx, special counsel to the CompanyDepositor and the Seller, substantially in form and substance satisfactory to the Underwriters and counsel to the Underwriters, to the effect that:: 192618 SEMT 2006-1 Underwriting Agreement 21
(iviii) Such entity has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of its incorporation and is duly qualified to do business in, and is in good standing as a foreign corporation under the laws of, each jurisdiction where the character of its properties or the nature of its activities makes such qualification necessary, except such jurisdictions, if any, in which the failure to be so qualified will not have a material adverse effect on the condition (financial or otherwise), earnings, regulatory affairs, business affairs, business prospects or properties of such entity; and such entity holds all material licenses, certificates and permits from all governmental authorities necessary for the conduct of its business as described in the Final Prospectus;
(ix) No filing or registration with, notice to, or consent, approval, authorization, order or other action of any governmental agency or body or any court is required for the consummation by such entity of the transactions contemplated by the terms of the Transaction Documents to which it is a party except such as may be required under the “blue sky” or state securities laws of any jurisdiction in connection with the offering, sale or acquisition of the Publicly-Offered Certificates, any recordations of the Mortgage Loans to the Trustee (to the extent such recordations are required pursuant to the Pooling and Servicing Agreement) that have not yet been completed and such other approvals as have been obtained;
(x) The issuance, delivery and sale of the Publicly-Offered Certificates to be purchased by the Underwriters pursuant to this Agreement, the execution and delivery of the Transaction Documents by such entity and the consummation of any of the transactions contemplated by the terms of the Transaction Documents do not conflict 192618 SEMT 2006-1 Underwriting Agreement 22 with or result in a breach or violation of any material term or provision of, or constitute a default under, the certificate of incorporation or by-laws of such entity, or any indenture, contract, lease, mortgage, deed of trust, note, agreement or other evidence of indebtedness or other agreement, obligation or instrument to which such entity is a party or by which it or its property is bound, or any statute or any law, decree, order, rule or regulation applicable to such entity of any court, regulatory body, administrative agency or governmental body having jurisdiction over such entity or its properties;
(xi) There are no legal or governmental actions, investigations or proceedings pending to which such entity is a party, or, to the best knowledge of such counsel, threatened against the such entity, (A) asserting the invalidity of any Transaction Document or the Certificates, (B) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by any Transaction Document, (C) which might materially and adversely affect the performance by such entity of its respective obligations under, or the validity or enforceability of, any Transaction Document or the Certificates or (D) seeking to affect adversely the Federal income tax attributes of the Publicly-Offered Certificates as described in the Final Prospectus under the heading “Material Federal Income Tax Consequences” or the state income tax attributes of the Publicly-Offered Certificates as described in the Final Prospectus under the heading “State Tax Considerations;”
(xii) The Registration Statement and any amendments thereto have become effective under the Securities Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and not withdrawn, no proceedings for that purpose have been instituted or threatened and not 192618 SEMT 2006-1 Underwriting Agreement 23 terminated; and the Registration Statement, the Statement and each Prospectus and each amendment or supplement theretothereto (in the case of the Registration Statement and the Final Prospectus), as of their respective effective or issue dates (other than the financial and statistical information contained therein as to which such counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the Securities Act and the respective rules and regulations of the Commission thereunder;
(iixiii) To the best knowledge of such counsel, there are not no material contracts, indentures or other documents of a character required to be described or referred to in the Registration Statement or the any Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto;
(iiixiv) The Company Each Transaction Document to which such entity is a party has been duly incorporatedauthorized, executed and delivered by such entity and constitutes a valid, legal and binding agreement of such entity enforceable against such entity in accordance with its terms, subject, as to enforceability to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and to general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law;
(xv) The direction by the Depositor to the Trustee to execute, authenticate and deliver the Publicly-Offered Certificates has been duly authorized by the Depositor, and the Publicly-Offered Certificates, when authenticated by the Trustee in the manner anticipated by the Pooling and Servicing Agreement and delivered and paid for by you as provided in this Agreement, will be validly existing as a corporation issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement; 192618 SEMT 2006-1 Underwriting Agreement 24
(xvi) The Publicly-Offered Certificates and the Transaction Documents conform in good standing all material respects to the descriptions thereof contained in the Final Prospectus;
(xvii) The statements in the Final Prospectus under the headings “Certain Legal Aspects of the Loans” and “Legal Investment,” to the extent that they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects;
(xviii) The Publicly-Offered Certificates indicated under the heading “Summary — Legal Investment” in the Final Prospectus to be “mortgage related securities” will be mortgage related securities, as defined in Section 3(a)(41) of the Exchange Act, so long as such Publicly-Offered Certificates are rated in one of the two highest rating categories by at least one nationally recognized statistical rating organization; and
(xix) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and neither the Depositor nor the Issuing Entity is required to be registered as an “investment company” under the 1940 Act. Such opinion of counsel shall also include negative assurances with respect to each Preliminary Prospectus and the Final Prospectus. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to the Transaction Documents. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than the Seller, the Depositor and Redwood Trust. Such opinion may be qualified as an opinion only on the laws ofof the States of New York, California and Delaware and the federal law of the United 192618 SEMT 2006-1 Underwriting Agreement 25
Appears in 1 contract
Samples: Underwriting Agreement (Sequoia Mortgage Trust 2006-1)
Conditions to the Obligations of Underwriters. The obligation of each Underwriter to purchase the Offered Securities Underwritten Public Certificates to be purchased by it as indicated in the related Pricing Letter shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company IndyMac MBS contained herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of the Company IndyMac MBS made in any officer's ’s certificate pursuant to the provisions hereof, to the performance in all material respects by the Company IndyMac MBS of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be in effect, have been issued and no proceedings for that purpose shall have been instituted and be pending or, to the knowledge of the Company, or shall have been threatened, and the Prospectus Supplement shall have been filed or transmitted mailed for filing by means reasonably calculated to result in a filing with the Commission not later than required pursuant to Rule 424 under the Actrules and regulations of the Commission.
(b) The Company IndyMac MBS shall have furnished to the Underwriters a certificate, dated the Closing Date, of the CompanyIndyMac MBS, signed by a vice president of the CompanyIndyMac MBS, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, Prospectus and this Agreement [the Pooling and Servicing Agreement, the Indenture or the Trust Agreement, as applicable] and that:
(i) The representations and warranties of the Company in this Agreement [the Pooling and Servicing Agreement, the Indenture and the Trust Agreement] IndyMac MBS herein are true and correct in all material respect respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company IndyMac MBS has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted and are pending or, to his knowledge, have been threatened as of the Closing Date;; and
(iii) Nothing has come to the attention of such person that would lead him to believe that the Prospectus (other than any Computational Materials or ABS Term Sheets (as defined in the Indemnification Agreement) incorporated therein by reference) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since ___________, there has been no material adverse change (not in the ordinary course of business) in connection with the Company.
(c) The Company Seller shall have furnished or caused to have been furnished to the Underwriters a certificate, dated the Closing Date, of the Seller, signed by a vice president or an assistant vice president of the Seller, to the effect that (i) the signer of such certificate has carefully examined the Prospectus and nothing has come to the attention of such person that would lead him to believe that the Prospectus contains any untrue statement of a material fact with respect to the Seller or the Assets or omits to state any material fact with respect to the Seller or the Assets Mortgage Loans necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading and (ii) the Seller has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date under this Agreement and the Pooling and Servicing Agreement.
(d) The Company IndyMac MBS shall have furnished to you and an opinion, dated the Closing Date, of __________________. Xxxxxx Xxxxxx LLP, special counsel to the CompanyIndyMac MBS, substantially to the effect that:
(i) The Registration Statement and any amendments thereto have become effective under the Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and not withdrawn, no proceedings for that purpose have been instituted or threatened and not terminated; and the Registration Statement, the Prospectus and each amendment or supplement thereto, as of their respective effective or issue dates (other than the financial and statistical information contained therein as to which such counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission thereunder;
(ii) To the best knowledge of such counsel, there are not no material contracts, indentures or other documents of a character required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto;
(iii) The Company has Assuming that this Agreement and the Pooling and Servicing Agreement have each been duly incorporatedauthorized, executed and delivered by the parties thereto, each constitutes a valid, legal and binding agreement of IndyMac MBS, and of the Seller in the case of the Pooling and Servicing Agreement enforceable against IndyMac MBS or the Seller in accordance with its terms, subject, as to enforceability to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and to general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law;
(iv) Assuming that the Certificates have been duly and validly existing authorized, executed and authenticated in the manner contemplated in the Pooling and Servicing Agreement, when delivered and paid for by you as provided in this Agreement, the Certificates will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement;
(v) The Certificates and the Pooling and Servicing Agreement conform to the descriptions thereof contained in the Prospectus;
(vi) The statements in the Prospectus and the Prospectus Supplement, as the case may be, under the headings “Material Federal Income Tax Consequences,” “ERISA Considerations” and “Legal Investment,” to the extent that they constitute matters of New York or federal law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects;
(vii) The Certificates indicated under the heading “Summary—Legal Investment” in the Prospectus Supplement to be “mortgage related securities” will be mortgage related securities, as defined in Section 3(a)(41) of the Exchange Act, so long as such Certificates are rated in one of the two highest rating categories by at least one nationally recognized statistical rating organization;
(viii) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the issuing entity created by the Pooling and Servicing Agreement is not required to be registered under the Investment Company Act of 1940, as amended; and
(ix) Each REMIC described in the Pooling and Servicing Agreement will qualify as a corporation real estate mortgage investment conduit within the meaning of Section 860D of the Internal Revenue Code of 1986, as amended (the “Code”), assuming: (i) an election is made to treat the assets of each REMIC as a real estate mortgage investment conduit, (ii) compliance with the Pooling and Servicing Agreement and (iii) compliance with changes in good standing the law, including any amendments to the Code or applicable Treasury regulations thereunder. Such counsel shall also state that nothing has come to its attention that has caused such counsel to believe that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the date of the Prospectus Supplement, and on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to (i) financial and statistical information contained therein or (ii) any description in the Prospectus of any third party providing credit enhancement to the Certificates. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement and the Pooling and Servicing Agreement. Such opinion may be qualified as an opinion only on the laws ofof the State of New York and the federal law of the
Appears in 1 contract
Samples: Underwriting Agreement (IndyMac INDB Mortgage Loan Trust 2006-1)
Conditions to the Obligations of Underwriters. The obligation of each Underwriter to purchase the Offered Securities Underwritten Public Certificates to be purchased by it as indicated in the related Pricing Letter shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company IndyMac MBS contained herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of the Company IndyMac MBS made in any officer's certificate pursuant to the provisions hereof, to the performance in all material respects by the Company IndyMac MBS of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be in effect, have been issued and no proceedings for that purpose shall have been instituted and be pending or, to the knowledge of the Company, or shall have been threatened, and the Prospectus Supplement shall have been filed or transmitted mailed for filing by means reasonably calculated to result in a filing with the Commission not later than required pursuant to Rule 424 under the Actrules and regulations of the Commission.
(b) The Company IndyMac MBS shall have furnished to the Underwriters a certificate, dated the Closing Date, of the CompanyIndyMac MBS, signed by a vice president of the CompanyIndyMac MBS, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, Prospectus and this Agreement [the Pooling and Servicing Agreement, the Indenture or the Trust Agreement, as applicable] and that:
(i) The representations and warranties of the Company in this Agreement [the Pooling and Servicing Agreement, the Indenture and the Trust Agreement] IndyMac MBS herein are true and correct in all material respect respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company IndyMac MBS has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted and are pending or, to his knowledge, have been threatened as of the Closing Date;; and
(iii) Nothing has come to the attention of such person that would lead him to believe that the Prospectus (other than any Computational Materials or ABS Term Sheets (as defined in the Indemnification Agreement) incorporated therein by reference) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since ___________, there has been no material adverse change (not in the ordinary course of business) in connection with the Company.
(c) The Company Seller shall have furnished or caused to have been furnished to the Underwriters a certificate, dated the Closing Date, of the Seller, signed by a vice president or an assistant vice president of the Seller, to the effect that (i) the signer of such certificate has carefully examined the Prospectus and nothing has come to the attention of such person that would lead him to believe that the Prospectus contains any untrue statement of a material fact with respect to the Seller or the Assets or omits to state any material fact with respect to the Seller or the Assets Mortgage Loans necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading and (ii) the Seller has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date under this Agreement and the Pooling and Servicing Agreement.
(d) The Company IndyMac MBS shall have furnished to you and an opinion, dated the Closing Date, of __________________. Sidley Austin LLP, special counsel to the CompanyIndyMac MBS, substantially to the effect that:
(i) The Registration Statement and any amendments thereto have become effective under the Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and not withdrawn, no proceedings for that purpose have been instituted or threatened and not terminated; and the Registration Statement, the Prospectus and each amendment or supplement thereto, as of their respective effective or issue dates (other than the financial and statistical information contained therein as to which such counsel need express no opinion), complied as to form in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission thereunder;
(ii) To the best knowledge of such counsel, there are not no material contracts, indentures or other documents of a character required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto;
(iii) The Company has Assuming that this Agreement and the Pooling and Servicing Agreement have each been duly incorporatedauthorized, executed and delivered by the parties thereto, each constitutes a valid, legal and binding agreement of IndyMac MBS, and of the Seller in the case of the Pooling and Servicing Agreement enforceable against IndyMac MBS or the Seller in accordance with its terms, subject, as to enforceability to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and to general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law;
(iv) Assuming that the Certificates have been duly and validly existing authorized, executed and authenticated in the manner contemplated in the Pooling and Servicing Agreement, when delivered and paid for by you as provided in this Agreement, the Certificates will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement;
(v) The Certificates and the Pooling and Servicing Agreement conform to the descriptions thereof contained in the Prospectus;
(vi) The statements in the Prospectus and the Prospectus Supplement, as the case may be, under the headings "Material Federal Income Tax Consequences," "ERISA Considerations" and "Legal Investment," to the extent that they constitute matters of New York or federal law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects;
(vii) The Certificates indicated under the heading "Summary--Legal Investment" in the Prospectus Supplement to be "mortgage related securities" will be mortgage related securities, as defined in Section 3(a)(41) of the Exchange Act, so long as such Certificates are rated in one of the two highest rating categories by at least one nationally recognized statistical rating organization;
(viii) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund created by the Pooling and Servicing Agreement is not required to be registered under the Investment Company Act of 1940, as amended; and
(ix) Each REMIC described in the Pooling and Servicing Agreement will qualify as a corporation real estate mortgage investment conduit within the meaning of Section 860D of the Internal Revenue Code of 1986, as amended (the "Code"), assuming: (i) an election is made to treat the assets of each REMIC as a real estate mortgage investment conduit, (ii) compliance with the Pooling and Servicing Agreement and (iii) compliance with changes in good standing the law, including any amendments to the Code or applicable Treasury regulations thereunder. Such counsel shall also state that nothing has come to its attention that has caused such counsel to believe that the Registration Statement, at the time it became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the date of the Prospectus Supplement, and on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no view as to (i) financial and statistical information contained therein or (ii) any description in the Prospectus of any third party providing credit enhancement to the Certificates. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement and the Pooling and Servicing Agreement. Such opinion may be qualified as an opinion only on the laws ofof the State of New York and the federal law of the
Appears in 1 contract
Conditions to the Obligations of Underwriters. The obligation of each Underwriter to purchase the Offered Securities Underwritten Public Certificates to be purchased by it as indicated in the related Pricing Letter and as provided herein shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company CWALT contained herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of the Company CWALT made in any officer's certificate pursuant to the provisions hereof, to the performance in all material respects by the Company CWALT of its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement shall be in effect, have been issued and no proceedings for that purpose shall have been instituted and be pending or, to the knowledge of the Company, or shall have been threatened, and the Prospectus Supplement shall have been filed or transmitted mailed for filing by means reasonably calculated to result in a filing with the Commission not later than required pursuant to Rule 424 under the Actrules and regulations of the Commission.
(b) The Company CWALT shall have furnished to the Underwriters a certificate, dated the Closing Date, of the CompanyCWALT, signed by a vice president of the CompanyCWALT, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Prospectus, Prospectus and this Agreement [the Pooling and Servicing Agreement, the Indenture or the Trust Agreement, as applicable] and that:
(i) The representations and warranties of the Company in this Agreement [the Pooling and Servicing Agreement, the Indenture and the Trust Agreement] CWALT herein are true and correct in all material respect respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company CWALT has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted and are pending or, to his knowledge, have been threatened as of the Closing Date;; and
(iii) Nothing has come to the attention of such person that would lead him to believe that the Prospectus (other than any Computational Materials or ABS Term Sheets (as defined in the Indemnification Agreement) incorporated therein by reference) at the date hereof and at the date hereof contained or contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since ___________, there has been no material adverse change (not in the ordinary course of business) in connection with the Company.
(c) The Company CHL shall have furnished or caused to have been furnished to the Underwriters a certificate, dated the Closing Date, of the SellerCHL, signed by a vice president or an assistant vice president of the SellerCHL, to the effect that (i) the signer of such certificate has carefully examined the Prospectus and nothing has come to the attention of such person that would lead him to believe that the Prospectus contains any untrue statement of a material fact with respect to the Seller CHL or the Assets Mortgage Loans or omits to state any material fact with respect to the Seller CHL or the Assets Mortgage Loans necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading and (ii) CHL has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date under this Agreement, the Indemnification Agreement, the Insurance Agreements and the Pooling and Servicing Agreement.
(d) The Company CWALT shall have furnished to you and an opinion, dated the Closing Date, of __________________. Sidley Xxxxxx Xxxxx & Xxxx LLP, special counsel to the CompanyCWALT, substantially to the effect that:
(i) The Registration Statement and any amendments thereto have become effective under the Act; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and not withdrawn, no proceedings for that purpose have been instituted or threatened and not terminated; and the Registration Statement, the Prospectus and each amendment or supplement thereto, as of their respective effective or issue dates (other than the financial and statistical information contained therein as to which such counsel need express no opiniontherein, including that contained in Computational Materials filed with the Commission in connection with the Mortgage Pass-Through Certificates of the series specified on the signature page hereof), complied as to form in all material respects with the applicable requirements of the Act and the rules and regulations of the Commission thereunder;
(ii) To the best knowledge of such counsel, there are not no material contracts, indentures or other documents of a character required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto;
(iii) The Company has Assuming that this Agreement and the Pooling and Servicing Agreement have each been duly incorporatedauthorized, executed and delivered by the parties thereto, each constitutes a valid, legal and binding agreement of CWALT, the Master Servicer and the Sellers in the case of the Pooling and Servicing Agreement, and of CWALT in the case of this Agreement and the Insurance Agreements enforceable against CWALT, the Master Servicer or the Sellers, as applicable, in accordance with its terms, subject, as to enforceability to bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and to general principles of equity regardless of whether enforcement is sought in a proceeding in equity or at law;
(iv) Assuming that the Certificates have been duly and validly existing authorized, executed and authenticated in the manner contemplated in the Pooling and Servicing Agreement, when delivered and paid for by you as a corporation provided in good standing this Agreement, the Certificates will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement;
(v) The Certificates and the Pooling and Servicing Agreement conform in all material respects to the descriptions thereof contained in the Prospectus;
(vi) The statements in the Prospectus Supplement under the laws ofheadings "Material Federal Income Tax Consequences," "ERISA Considerations" and "Summary - Legal Investment," and in the Prospectus under "Material Federal Income Tax Consequences," "ERISA Considerations" and "Legal Investment" to the extent that they constitute matters of New York or federal law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects;
Appears in 1 contract
Samples: Underwriting Agreement (Cwalt Inc)
