Covenants of the Company and the Seller. Each of the Company and the Seller covenants with the Underwriter as follows: (a) The Company and the Seller will prepare the Prospectus Supplement setting forth the principal amount of the Certificates covered thereby, the price or prices at which the Certificates are to be purchased by the Underwriter from the Trust, either the initial public offering price or prices or the method by which the price or prices by which the Certificates are to be sold will be determined, the selling concession(s) and reallowance(s), if any, any delayed delivery arrangements, and such other information as the Underwriter, the Company and the Seller deem appropriate in connection with the offering of the Certificates. The Seller will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriter as many copies of the Prospectus and such Prospectus Supplement, each Additional Transfer Filing (as defined herein) and each Subsequent Transfer Filing (as defined herein) as the Underwriter shall reasonably request. (b) If, at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Certificates by the Underwriter, any event shall occur or condition exist as a result of which it is necessary, in the opinion of your counsel, counsel for the Company and the Seller, or otherwise, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of circumstances existing at the time it is delivered to a purchaser, not misleading or if it shall be necessary, in the opinion of any such counsel or otherwise, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the Regulations thereunder, the Company and the Seller will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement comply with such requirements, and within two (2) business days will furnish to the Underwriter as many copies of the Prospectus, as so amended or supplemented, as the Underwriter shall reasonably request. Neither the Underwriter's consent to, or such Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of the conditions set forth in Section 5 hereof. (c) The Company or the Seller, as applicable, will give the Underwriter reasonable notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act or otherwise, will furnish the Underwriter with copies of any such amendment or supplement or other documents proposed to be filed a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which the Underwriter or its counsel shall object. (d) The Company or the Seller will notify the Underwriter immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document other than quarterly and annual reports to be filed pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company and the Seller will make every reasonable effort to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment. (e) The Seller will deliver to the Underwriter as many signed and as many conformed copies of the Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) as the Underwriter may reasonably request. (f) The Company and the Seller will endeavor, in cooperation with the Underwriter, to qualify the Certificates for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate, and will maintain or cause to be maintained such qualifications in effect for as long as may be required for the distribution of the Certificates. The Company and the Seller will file or cause the filing of such statements and reports as may be required by the laws of each jurisdiction in which the Certificates have been qualified as above provided. (g) The Seller will prepare, or cause to be prepared, and file, or cause to be filed, a timely election to treat the Trust as one or more real estate mortgage investment conduits (a "REMIC") for federal income tax purposes and will file, or cause to be filed, such tax returns and take such actions, all on a timely basis, as are required to elect and maintain such status. (h) Neither the Company nor the Seller will, without the prior written consent of the Underwriter, publicly offer or sell or contract to publicly sell home improvement loan pass-through certificates or home improvement loan pass-through notes or similar securities representing interests in or secured by other home improvement loan related assets for a period of thirty (30) days from the date hereof. (i) The Seller will file with the Commission within fifteen days of the issuance of the Certificates a current report on Form 8-K setting forth specific information concerning the Certificates and the Loans to the extent that such information is not set forth in the Prospectus. The Seller will also file with the Commission a current report on Form 8-K setting forth all Computational Materials, ABS Term Sheets and Collateral Term Sheets (as such terms are defined herein) provided to the Company or the Seller by any Underwriter within the applicable time periods allotted for such filing pursuant to the No-Action Letters. (j) In connection with any Computational Materials, ABS Term Sheets or Collateral Term Sheets provided by the Underwriter pursuant to Section 6, the Company and the Seller must receive a letter from [ACCOUNTANT], certified public accountants, satisfactory in form and substance to the Company and the Seller, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company and the Seller, as a result of which they have determined that the information included in the Computational Materials, ABS Term Sheets or Collateral Term Sheets (if any), provided by the Underwriter(s) to the Company or the Seller for filing on Form 8-K pursuant to Section 6 and subsection (i), is accurate except as to such matters that are not deemed by the Company or the Seller to be material. The foregoing letter shall be obtained at the expense of the Company and the Seller. (k) In the event that the Underwriter must prepare corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets pursuant to Section 6(b)(4), the Seller shall file any corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets no later than two business days following receipt thereof. (l) The Seller will file with the Commission a Current Report on Form 8-K within fifteen days of each purchase of Subsequent Loans by the Trust (the "Subsequent Transfer Filing"). On or before the final purchase of Subsequent Loans by the Trust and the expiration of the Pre-Funding Period, the Company and the Seller must receive a letter from [ACCOUNTANT], certified public accountants, satisfactory in form and substance to the Company, the Seller and the Underwriter, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company and the Seller, as a result of which they have determined, having examined in accordance with such agreed upon procedures, that (i) the information included in such filing is accurate except as to such matters that are not deemed by the Company, the Seller and the Underwriter to be material and (ii) the Subsequent Loans conform to the related requirements described in the Prospectus. The foregoing letter shall be at the expense of the Seller. (m) On or prior to each Subsequent Closing Date, the Company and the Seller shall deliver to the Underwriter, or cause the delivery of, the opinions and officer's certificates, substantially in the form of the items listed in Sections 5 (b), (c), (d), (e) and (f) hereof, each dated the Subsequent Closing Date, with such conforming changes thereto as the Underwriter may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Conseco Finance Securitizations Corp)
Covenants of the Company and the Seller. Each 5.01 Conduct of the Business. From the date hereof until the earlier of the Closing Date and the termination of this Agreement, except (i) as contemplated hereunder, (ii) as required by Law, (iii) unless the Purchaser shall have consented in writing (which consent will not be unreasonably withheld or delayed) or (iv) as set forth on Schedule 5.01, the Company shall (and shall cause each of its Subsidiaries to) use its commercially reasonable efforts to conduct the Business in the ordinary course of business consistent with past practice and preserve the businesses, organization, goodwill and operations of the Company and its Subsidiaries, including their rights, assets, properties, relationships with vendors, customers, employees, Governmental Authorities and other third parties, and the Seller covenants with the Underwriter as followsCompany shall not, and shall not permit any of its Subsidiaries to:
(aA) The Company and issue, sell or deliver any shares of its or any of its Subsidiaries’ equity securities or issue, sell, grant or accelerate the Seller will prepare the Prospectus Supplement setting forth the principal amount timing of the Certificates covered therebypayment or vesting of any securities exchangeable or convertible into, the price options with respect to, warrants to purchase or prices at which the Certificates are rights to be purchased by the Underwriter from the Trust, either the initial public offering price or prices or the method by which the price or prices by which the Certificates are to be sold will be determined, the selling concession(s) and reallowance(s), if anysubscribe for, any delayed delivery arrangementsshares or other equity interests of its or any of its Subsidiaries’ equity securities, and such other information as the Underwriteror issue, sell or grant any unit appreciation, phantom equity, profit participation or similar rights with respect to the Company and the Seller deem appropriate in connection or any of its Subsidiaries;
(B) effect any recapitalization, reclassification, dividend on its equity, stock split or like change of its or any of its Subsidiaries’ capitalization or adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, or recapitalization;
(C) amend its or any of its Subsidiaries’ certificate or articles of incorporation or bylaws (or equivalent organizational documents);
(D) make any redemption or purchase of, or enter into any contract with the offering of the Certificates. The Seller will promptly transmit copies of the Prospectus Supplement respect to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriter as many copies voting of, any shares of the Prospectus and such Prospectus Supplement, each Additional Transfer Filing (as defined herein) and each Subsequent Transfer Filing (as defined herein) as the Underwriter shall reasonably request.its or any of its Subsidiaries’ equity securities;
(bE) Ifsell, at lease, license, abandon, dispose of, pledge, impose a Lien upon, assign or transfer any time when the Prospectus portion of its or any of its Subsidiaries’ assets (other than Intellectual Property, which is required governed by the 1933 Act to be delivered in connection with sales of the Certificates by the Underwriterclause (M) below);
(F) make any capital investment in, or any loan to, any event shall occur other Person or condition exist as enter into any contract for a result joint venture, strategic alliance, partnership or sharing of which it is necessaryprofits;
(G) make any capital expenditures or commitments therefor in excess of $100,000, except for such capital expenditures or commitments therefor that are reflected in the opinion of your counsel, counsel Company’s budget for the Company and the Sellerfiscal year ending December 31, 2015;
(H) incur, assume, endorse or otherwise, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state guarantee any material fact necessary to make the statements therein, Indebtedness other than in the light ordinary course of circumstances existing at the time it is delivered to a purchaser, not misleading or if it shall be necessary, in the opinion of business;
(I) make any such counsel or otherwise, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the Regulations thereunder, the Company and the Seller will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement comply with such requirements, and within two (2) business days will furnish to the Underwriter as many copies of the Prospectus, as so amended or supplemented, as the Underwriter shall reasonably request. Neither the Underwriter's consent loan to, or such Underwriter's delivery ofenter into any other transaction with, any such amendment of the directors, officers, and employees of the Company or supplement shall constitute any of its Subsidiaries outside the ordinary course of business;
(J) enter into, amend, modify, renew or waive performance under in any material respect or terminate any Material Contract or contract that would be a Material Contract if in effect on the date hereof, other than in the ordinary course of business (other than with respect to real property, which is governed by clause (K) below and Intellectual Property, which is governed by clause (M) below);
(K) enter into, amend, modify, renew or waive performance under in any material respect or terminate any lease, sublease or license for real property other than in the ordinary course of business;
(L) settle any Litigation involving an amount in excess of $100,000 for any one case or settle any Litigation other than Litigation seeking solely monetary damages, or commence any Litigation;
(M) grant to any Person, or sell, transfer, pledge, impose a Lien on, or otherwise dispose of or permit to lapse, any rights to Company IP Rights, except non-exclusive licenses granted to customers in the ordinary course of business;
(N) make or change any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement with a Tax authority, settle any Tax claim or assessment relating to the Company or any of its Subsidiaries, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the conditions set forth limitation period applicable to any Tax claim or assessment relating the Company or any of its Subsidiaries (other than pursuant to extensions of time to file Tax Returns obtained in Section 5 hereof.the ordinary course of business);
(cO) The Company make any change in its accounting methods, principles or practices, except as required by GAAP;
(P) make any material change in its policies with respect to the payment of accounts payable or accrued expenses or the Sellercollection of the accounts receivable or other receivables, including any acceleration or deferral of the payment or collection thereof, as applicable, will give in each case, other than in the Underwriter reasonable notice ordinary course of its intention to file any amendment to business;
(Q) adopt, terminate or materially amend the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act or otherwise, will furnish the Underwriter with copies terms of any such amendment Plan, or supplement or other documents proposed materially increase the compensation to be filed a reasonable time provided to any employee, except (A) as required by any applicable Law, (B) in advance the ordinary course of filingbusiness consistent with past practice of the Business, and (C) arrangements that will not file result in any such amendment liability under this Agreement or supplement or other documents in a form otherwise to which the Underwriter Purchaser or its counsel shall object.Affiliates (including any retention or similar arrangements that will be paid solely by the Seller) and for which Purchaser has no requirement to maintain comparable benefits, or (D) as requested by Purchaser;
(dR) The Company grant any short-term incentives to increase sales or new supplier discounts other than in the Seller will notify the Underwriter immediatelyordinary course of business; or
(S) enter into any contract or otherwise commit or agree, and confirm the notice orally or in writing, (i) to do any of the effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document other than quarterly and annual reports to be filed pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company and the Seller will make every reasonable effort to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible momentforegoing.
(e) The Seller will deliver to the Underwriter as many signed and as many conformed copies of the Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) as the Underwriter may reasonably request.
(f) The Company and the Seller will endeavor, in cooperation with the Underwriter, to qualify the Certificates for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate, and will maintain or cause to be maintained such qualifications in effect for as long as may be required for the distribution of the Certificates. The Company and the Seller will file or cause the filing of such statements and reports as may be required by the laws of each jurisdiction in which the Certificates have been qualified as above provided.
(g) The Seller will prepare, or cause to be prepared, and file, or cause to be filed, a timely election to treat the Trust as one or more real estate mortgage investment conduits (a "REMIC") for federal income tax purposes and will file, or cause to be filed, such tax returns and take such actions, all on a timely basis, as are required to elect and maintain such status.
(h) Neither the Company nor the Seller will, without the prior written consent of the Underwriter, publicly offer or sell or contract to publicly sell home improvement loan pass-through certificates or home improvement loan pass-through notes or similar securities representing interests in or secured by other home improvement loan related assets for a period of thirty (30) days from the date hereof.
(i) The Seller will file with the Commission within fifteen days of the issuance of the Certificates a current report on Form 8-K setting forth specific information concerning the Certificates and the Loans to the extent that such information is not set forth in the Prospectus. The Seller will also file with the Commission a current report on Form 8-K setting forth all Computational Materials, ABS Term Sheets and Collateral Term Sheets (as such terms are defined herein) provided to the Company or the Seller by any Underwriter within the applicable time periods allotted for such filing pursuant to the No-Action Letters.
(j) In connection with any Computational Materials, ABS Term Sheets or Collateral Term Sheets provided by the Underwriter pursuant to Section 6, the Company and the Seller must receive a letter from [ACCOUNTANT], certified public accountants, satisfactory in form and substance to the Company and the Seller, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company and the Seller, as a result of which they have determined that the information included in the Computational Materials, ABS Term Sheets or Collateral Term Sheets (if any), provided by the Underwriter(s) to the Company or the Seller for filing on Form 8-K pursuant to Section 6 and subsection (i), is accurate except as to such matters that are not deemed by the Company or the Seller to be material. The foregoing letter shall be obtained at the expense of the Company and the Seller.
(k) In the event that the Underwriter must prepare corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets pursuant to Section 6(b)(4), the Seller shall file any corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets no later than two business days following receipt thereof.
(l) The Seller will file with the Commission a Current Report on Form 8-K within fifteen days of each purchase of Subsequent Loans by the Trust (the "Subsequent Transfer Filing"). On or before the final purchase of Subsequent Loans by the Trust and the expiration of the Pre-Funding Period, the Company and the Seller must receive a letter from [ACCOUNTANT], certified public accountants, satisfactory in form and substance to the Company, the Seller and the Underwriter, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company and the Seller, as a result of which they have determined, having examined in accordance with such agreed upon procedures, that (i) the information included in such filing is accurate except as to such matters that are not deemed by the Company, the Seller and the Underwriter to be material and (ii) the Subsequent Loans conform to the related requirements described in the Prospectus. The foregoing letter shall be at the expense of the Seller.
(m) On or prior to each Subsequent Closing Date, the Company and the Seller shall deliver to the Underwriter, or cause the delivery of, the opinions and officer's certificates, substantially in the form of the items listed in Sections 5 (b), (c), (d), (e) and (f) hereof, each dated the Subsequent Closing Date, with such conforming changes thereto as the Underwriter may reasonably request.
Appears in 1 contract
Samples: Share Purchase Agreement
Covenants of the Company and the Seller. Each of the The Company and the Seller covenants covenant with the Underwriter as follows:
(a) The Company and the Seller will prepare the Prospectus Supplement setting forth the principal amount of the Certificates covered thereby, the price or prices at which the Certificates are to be purchased by the Underwriter from the Trust, either the initial public offering price or prices or the method by which the price or prices by which the Certificates are to be sold will be determined, the selling concession(s) and reallowance(s), if any, any delayed delivery arrangements, and such other information as the Underwriter, the Company and the Seller deem appropriate in connection with the offering of the Certificates. The Seller will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriter as many copies of the Prospectus and such Prospectus Supplement, each Additional Transfer Filing (as defined herein) and each Subsequent Transfer Filing (as defined herein) as the Underwriter shall reasonably request.
(b) If, at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Certificates by notify the Underwriter, any event shall occur or condition exist as a result of which it is necessary, in the opinion of your counsel, counsel for the Company and the Seller, or otherwise, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of circumstances existing at the time it is delivered to a purchaser, not misleading or if it shall be necessary, in the opinion of any such counsel or otherwise, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the Regulations thereunder, the Company and the Seller will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement comply with such requirements, and within two (2) business days will furnish to the Underwriter as many copies of the Prospectus, as so amended or supplemented, as the Underwriter shall reasonably request. Neither the Underwriter's consent to, or such Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of the conditions set forth in Section 5 hereof.
(c) The Company or the Seller, as applicable, will give the Underwriter reasonable notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act or otherwise, will furnish the Underwriter with copies of any such amendment or supplement or other documents proposed to be filed a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which the Underwriter or its counsel shall object.
(d) The Company or the Seller will notify the Underwriter immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, ; (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document other than quarterly and annual reports to be filed pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and ; (viii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceedings for that purpose; and (iv) of the receipt by the Seller of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation or threatening of any proceedings for that purpose. The Company and the Seller will make every reasonable effort to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(eb) The Seller will give the Underwriter notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus (including any revised prospectus which the Seller proposes for use by the Underwriter in connection with the offering of the Certificates which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the Underwriter with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and, unless required by law to do so, will not file any such amendment or supplement or use any such prospectus to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Seller will deliver to the Underwriter as many signed and as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (in each case including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectustherewith) as the Underwriter may reasonably request.
(d) The Seller will furnish to the Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"), such number of copies of the Prospectus (as amended or supplemented) as the Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Seller will forthwith amend or supplement the Prospectus (in form and substance satisfactory to counsel for the Underwriter) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, and the Seller will furnish to the Underwriter a reasonable number of copies of such amendment or supplement.
(f) The Company and the Seller will endeavor, in cooperation with the Underwriter, to qualify the Certificates for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you the Underwriter may designate; provided, and will maintain or cause however, that Seller shall not be obligated to be maintained such qualifications qualify as a foreign corporation in effect for as long as may be required for any jurisdiction in which it is not so qualified. In each jurisdiction in which the distribution of the Certificates. The Company and Certificates have been so qualified, the Seller will file or cause the filing of such statements and reports as may be required by the laws of each such jurisdiction to continue such qualification in which effect for a period of not less than one year from the Certificates have been qualified as above provideddate hereof.
(g) The Seller will prepare, or cause file with the Commission such reports on Form SR as may be required pursuant to be prepared, and file, or cause to be filed, a timely election to treat Rule 463 under the Trust as one or more real estate mortgage investment conduits (a "REMIC") for federal income tax purposes and will file, or cause to be filed, such tax returns and take such actions, all on a timely basis, as are required to elect and maintain such status1933 Act.
(h) Neither the Company nor the Seller will, without the prior written consent of the Underwriter, publicly offer or sell or contract to publicly sell home improvement loan pass-through certificates or home improvement loan pass-through notes or similar securities representing interests in or secured by other home improvement loan related assets for a period of thirty (30) days from the date hereof.
(i) The Seller will file with the Commission within fifteen days of the issuance of the So long as any Certificates a current report on Form 8-K setting forth specific information concerning the Certificates and the Loans to the extent that such information is not set forth in the Prospectus. The Seller will also file with the Commission a current report on Form 8-K setting forth all Computational Materials, ABS Term Sheets and Collateral Term Sheets (as such terms are defined herein) provided to the Company or the Seller by any Underwriter within the applicable time periods allotted for such filing pursuant to the No-Action Letters.
(j) In connection with any Computational Materials, ABS Term Sheets or Collateral Term Sheets provided by the Underwriter pursuant to Section 6, the Company and the Seller must receive a letter from [ACCOUNTANT], certified public accountants, satisfactory in form and substance to the Company and the Seller, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company and the Seller, as a result of which they have determined that the information included in the Computational Materials, ABS Term Sheets or Collateral Term Sheets (if any), provided by the Underwriter(s) to the Company or the Seller for filing on Form 8-K pursuant to Section 6 and subsection (i), is accurate except as to such matters that are not deemed by the Company or the Seller to be material. The foregoing letter shall be obtained at the expense of the Company and the Seller.
(k) In the event that the Underwriter must prepare corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets pursuant to Section 6(b)(4)outstanding, the Seller shall file any corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets no later than two business days following receipt thereof.
(l) The Seller will file with the Commission a Current Report on Form 8-K within fifteen days of each purchase of Subsequent Loans by the Trust (the "Subsequent Transfer Filing"). On or before the final purchase of Subsequent Loans by the Trust and the expiration of the Pre-Funding Period, the Company and the Seller must receive a letter from [ACCOUNTANT], certified public accountants, satisfactory in form and substance to the Company, the Seller and the Underwriter, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company and the Seller, as a result of which they have determined, having examined in accordance with such agreed upon procedures, that (i) the information included in such filing is accurate except as to such matters that are not deemed by the Company, the Seller and the Underwriter to be material and (ii) the Subsequent Loans conform to the related requirements described in the Prospectus. The foregoing letter shall be at the expense of the Seller.
(m) On or prior to each Subsequent Closing Date, the Company and the Seller shall deliver to the Underwriter, as promptly as practicable, such information concerning the Seller or cause the delivery of, the opinions and officer's certificates, substantially in the form of the items listed in Sections 5 (b), (c), (d), (e) and (f) hereof, each dated the Subsequent Closing Date, with such conforming changes thereto Certificates as the Underwriter may reasonably requestrequest from time to time.
Appears in 1 contract
Samples: Underwriting Agreement (Money Store Commercial Mortgage Inc)
Covenants of the Company and the Seller. Each 6.1 Conduct of the Business.
(a) From the date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with Section 8.1, except as otherwise expressly provided for by this Agreement, required by Law or consented to in writing by the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed), the Seller and the Company shall, and shall cause the Company’s Subsidiaries to, (i) conduct the businesses of the Company and its Subsidiaries in the Seller covenants Ordinary Course of Business, (ii) use commercially reasonable efforts to preserve present relationships and goodwill with suppliers, customers, landlords, employees, agents and other Persons, in each case having business dealings with the Underwriter Company or any of its Subsidiaries, (iii) use commercially reasonable efforts to maintain a cash balance such that the Company’s Closing Cash remains greater than or equal to the Required Operating Cash amount, which cash shall be held in the Company’s main checking account as follows:
(a) The Company and the Seller will prepare the Prospectus Supplement setting forth the principal amount of the Certificates covered therebyClosing; provided that, the price or prices at which the Certificates are to be purchased by the Underwriter from the Trust, either the initial public offering price or prices or the method by which the price or prices by which the Certificates are to be sold will be determined, the selling concession(s) and reallowance(s), if any, any delayed delivery arrangements, and such other information as the Underwriterforegoing notwithstanding, the Company and the Seller deem appropriate in connection with the offering and/or any of the Certificates. The Seller will promptly transmit copies of the Prospectus Supplement its Subsidiaries may use up to all available cash to repay any Closing Transaction Expenses or Indebtedness prior to the Commission Closing, for filing pursuant to Rule 424 under the 1933 Act and will furnish distributions or dividends or for any other purpose, but only to the Underwriter as many copies of extent that the Prospectus and such Prospectus Supplement, each Additional Transfer Filing (as defined herein) and each Subsequent Transfer Filing (as defined herein) as Company’s Closing Cash remains greater than or equal to the Underwriter shall reasonably requestRequired Operating Cash amount.
(b) IfFrom the date hereof until the earlier of the Closing Date and the termination of this Agreement in accordance with Section 8.1, at any time when the Prospectus is except as otherwise expressly provided for by this Agreement, required by the 1933 Act Law or consented to be delivered in connection with sales of the Certificates writing by the Underwriter, any event shall occur or condition exist as a result of Purchaser (which it is necessary, in the opinion of your counsel, counsel for the Company and the Seller, or otherwise, to further amend or supplement the Prospectus in order that the Prospectus consent will not include an untrue statement of a material fact be unreasonably withheld, conditioned or omit to state any material fact necessary to make the statements therein, in the light of circumstances existing at the time it is delivered to a purchaser, not misleading or if it shall be necessary, in the opinion of any such counsel or otherwise, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the Regulations thereunderdelayed), the Company and the Seller will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement comply with such requirements, and within two (2) business days will furnish to the Underwriter as many copies of the Prospectus, as so amended or supplemented, as the Underwriter shall reasonably request. Neither the Underwriter's consent to, or such Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of the conditions set forth in Section 5 hereof.
(c) The Company or the Seller, as applicable, will give the Underwriter reasonable notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act or otherwise, will furnish the Underwriter with copies of any such amendment or supplement or other documents proposed to be filed a reasonable time in advance of filingnot, and will not file permit any such amendment or supplement or other documents in a form to which of its Subsidiaries to, intentionally take any action which, if taken after the Underwriter or its counsel shall object.
(d) The Company or the Seller will notify the Underwriter immediately, and confirm the notice in writing, (i) date of the effectiveness of any amendment Latest Balance Sheet and prior to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document other than quarterly and annual reports to be filed pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company and the Seller will make every reasonable effort to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Seller will deliver to the Underwriter as many signed and as many conformed copies of the Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) as the Underwriter may reasonably request.
(f) The Company and the Seller will endeavor, in cooperation with the Underwriter, to qualify the Certificates for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate, and will maintain or cause to be maintained such qualifications in effect for as long as may be required for the distribution of the Certificates. The Company and the Seller will file or cause the filing of such statements and reports as may be required by the laws of each jurisdiction in which the Certificates have been qualified as above provided.
(g) The Seller will prepare, or cause to be prepared, and file, or cause to be filed, a timely election to treat the Trust as one or more real estate mortgage investment conduits (a "REMIC") for federal income tax purposes and will file, or cause to be filed, such tax returns and take such actions, all on a timely basis, as are required to elect and maintain such status.
(h) Neither the Company nor the Seller will, without the prior written consent of the Underwriter, publicly offer or sell or contract to publicly sell home improvement loan pass-through certificates or home improvement loan pass-through notes or similar securities representing interests in or secured by other home improvement loan related assets for a period of thirty (30) days from the date hereof.
(i) The Seller will file with the Commission within fifteen days of the issuance of the Certificates a current report , would have been required to be disclosed on Form 8-K setting forth specific information concerning the Certificates and the Loans to the extent that such information is not set forth in the Prospectus. The Seller will also file with the Commission a current report on Form 8-K setting forth all Computational Materials, ABS Term Sheets and Collateral Term Sheets (as such terms are defined herein) provided to the Company or the Seller by any Underwriter within the applicable time periods allotted for such filing pursuant to the No-Action Letters.
(j) In connection with any Computational Materials, ABS Term Sheets or Collateral Term Sheets provided by the Underwriter Schedule 3.6 pursuant to Section 6, the Company and the Seller must receive a letter from [ACCOUNTANT], certified public accountants, satisfactory in form and substance 3.6. Notwithstanding anything to the Company and the Seller, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company and the Seller, as a result of which they have determined that the information included contrary in the Computational Materials, ABS Term Sheets or Collateral Term Sheets (if any), provided by the Underwriter(s) to the Company or the Seller for filing on Form 8-K pursuant to this Section 6 and subsection (i), is accurate except as to such matters that are not deemed by the Company or the Seller to be material. The foregoing letter shall be obtained at the expense of the Company and the Seller.
(k) In the event that the Underwriter must prepare corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets pursuant to Section 6(b)(46.1(b), the Seller shall file Company’s and its Subsidiaries’ failure to take any corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets no later than two business days following receipt thereofaction prohibited by this Section 6.1(b) will not be a breach of Section 6.1(a).
(l) The Seller will file with the Commission a Current Report on Form 8-K within fifteen days of each purchase of Subsequent Loans by the Trust (the "Subsequent Transfer Filing"). On or before the final purchase of Subsequent Loans by the Trust and the expiration of the Pre-Funding Period, the Company and the Seller must receive a letter from [ACCOUNTANT], certified public accountants, satisfactory in form and substance to the Company, the Seller and the Underwriter, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company and the Seller, as a result of which they have determined, having examined in accordance with such agreed upon procedures, that (i) the information included in such filing is accurate except as to such matters that are not deemed by the Company, the Seller and the Underwriter to be material and (ii) the Subsequent Loans conform to the related requirements described in the Prospectus. The foregoing letter shall be at the expense of the Seller.
(m) On or prior to each Subsequent Closing Date, the Company and the Seller shall deliver to the Underwriter, or cause the delivery of, the opinions and officer's certificates, substantially in the form of the items listed in Sections 5 (b), (c), (d), (e) and (f) hereof, each dated the Subsequent Closing Date, with such conforming changes thereto as the Underwriter may reasonably request.
Appears in 1 contract
Covenants of the Company and the Seller. Each 7.01 Conduct of the Business.
(a) From the date hereof until the Closing Date, the Company shall use its commercially reasonable efforts (i) to conduct its business and the businesses of its Subsidiaries in the Ordinary Course of Business and (ii) to preserve the current relationships of the Company and its Subsidiaries with their customers, suppliers, distributors, licensors, licensees, partners and other Persons with which the Seller covenants with Company or any of its Subsidiaries has significant business relations as is reasonably necessary in order to preserve substantially intact its business and goodwill, except (x) if the Underwriter Purchaser shall have consented in writing or (y) as follows:
(a) The Company and the Seller will prepare the Prospectus Supplement setting forth the principal amount of the Certificates covered therebyotherwise expressly contemplated or expressly permitted by this Agreement; provided that, the price or prices at which the Certificates are to be purchased by the Underwriter from the Trustforegoing notwithstanding, either the initial public offering price or prices or the method by which the price or prices by which the Certificates are to be sold will be determined, the selling concession(s(A) and reallowance(s), if any, any delayed delivery arrangements, and such other information as the Underwriter, the Company and the Seller deem appropriate in connection with the offering of the Certificates. The Seller will promptly transmit copies of the Prospectus Supplement its Subsidiaries may use all available cash to repay any Indebtedness or to make cash distributions prior to the Commission for filing pursuant open of business on the Closing Date, (B) no action by the Company or its Subsidiaries with respect to Rule 424 under matters specifically addressed by any other provision of this Section 7.01 shall be deemed a breach of this Section 7.01(a), unless such action would constitute a breach of one or more of such other provisions and (C) the 1933 Act Company and will furnish its Subsidiaries’ failure to the Underwriter as many copies take any action prohibited by Sections 7.01(b) or 7.01(c) shall not be a breach of the Prospectus and such Prospectus Supplement, each Additional Transfer Filing (as defined herein) and each Subsequent Transfer Filing (as defined herein) as the Underwriter shall reasonably requestthis Section 7.01(a).
(b) IfFrom the date hereof until the Closing Date, at any time when except (A) as set forth on the Prospectus is required Conduct of Business Schedule attached hereto, (B) as otherwise expressly contemplated or expressly permitted by this Agreement or (C) as consented to in writing by the 1933 Act to be delivered in connection with sales of the Certificates by the Underwriter, any event shall occur or condition exist as a result of Purchaser (which it is necessaryconsent, in the opinion case of your counselSections 7.01(b)(vi), counsel for 7.01(b)(x), 7.01(b)(xi) and 7.01(b)(xvi) will not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause its Subsidiaries not to, do or cause to be done any of the following:
(i) issue, pledge, cancel, sell or deliver any units or shares of its or its Subsidiaries’ equity securities or issue, grant or sell any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any units or shares of its or its Subsidiaries’ equity securities;
(ii) (A) declare, set aside or pay any dividend or distribution (other than cash dividends or cash distributions paid prior to the open of business on the Closing Date) in respect of any shares of, or other equity interests in, the Company or any Subsidiary of the Company, or (B) effect any recapitalization, reclassification, equity dividend, equity split or like change in the capitalization of the Company or any Subsidiary of the Company;
(iii) other than to the extent required to comply with its obligations hereunder or required by Law, amend its or its Subsidiaries’ certificate or articles of formation or incorporation or similar organizational documents;
(iv) make any redemption or purchase of any units or shares of its or its Subsidiaries’ equity securities (other than redemptions or purchases paid in cash prior to the open of business on the Closing Date);
(v) create any Lien on any assets or properties (whether tangible or intangible) of the Company or its Subsidiaries, other than Permitted Liens;
(vi) incur or assume any Indebtedness other than in the Ordinary Course of Business and other than pursuant to written agreements set forth on the Contracts Schedule as in effect as of the date hereof;
(vii) sell, assign, transfer, lease or otherwise dispose of, or agree to sell, assign, transfer, lease or otherwise dispose of, any of its assets, except (A) in the Ordinary Course of Business, (B) pursuant to any agreement set forth on the Contracts Schedule as in effect on the date hereof or (C) pursuant to transactions among the Company and wholly owned Subsidiaries of the SellerCompany;
(viii) acquire (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership or other business organization or division thereof or any business, in each case to the extent such transactions involve consideration in excess of $250,000 individually or $500,000 in the aggregate;
(ix) make any investment in excess of $250,000 in, or otherwiseany advances, to further amend loans, extensions of credit or supplement capital contributions in excess of $250,000 to, any other Person other than a wholly owned Subsidiary of the Prospectus in order that the Prospectus will not include an untrue statement Company, except (A) extensions of a material fact or omit to state any material fact necessary to make the statements therein, trade credit in the light Ordinary Course of circumstances existing at Business or (B) pursuant to any agreement set forth on the time it is delivered to a purchaser, not misleading Contracts Schedule as in effect on the date hereof;
(x) make any capital expenditures in excess of $250,000 individually or if it shall be necessary, $500,000 in the opinion aggregate or commitments therefor, except for such capital expenditures or commitments therefor that are reflected in the Company’s or its Subsidiaries’ current budget as provided to the Purchaser prior to the date hereof;
(xi) enter into any agreement that would constitute a Material Contract, or amend, modify or terminate any Material Contract, except for the entrance into such contracts (other than any contract described in clause (i), (ii), (iii), (ix), (x), (xi), (xii) or (xviii) of the definition of Material Contract) in the Ordinary Course of Business;
(xii) make any such counsel loan to, or otherwiseenter into any other material transaction with, at any such time of its directors, officers or employees except pursuant to amend or supplement any agreement set forth on the Registration Statement Contracts Schedule or the Prospectus Affiliated Transactions Schedule as in effect on the date hereof;
(xiii) except as required under applicable Law or under any existing Plan set forth on the Employee Benefits Schedule, (A) adopt, enter into, terminate or materially amend any Plan or other agreement, plan or policy involving the Company or any of its Subsidiaries and one or more of their respective Participants, (B) accelerate or increase in any manner the compensation, bonus, severance or fringe or other benefits of, or pay or grant any bonus or award to, any Participant, (C) pay any benefit or amount not required under any Plan set forth on the Employee Benefits Schedule, other than the payment of base salary and wages or (D) take any action to fund or in any other way secure the payment of compensation or benefits under any employee plan, agreement, contract or arrangement or Plan;
(xiv) hire any employee with an expected annual compensation in excess of $150,000 (other than pursuant to any “at will” contract that may be terminated by the Company or a Subsidiary of the Company, without any payment or penalty, upon thirty (30) days or less advance notice or upon the minimum advance notice required by applicable Law);
(xv) change any method of accounting or accounting practice used by the Company or its Subsidiaries, other than such changes required by GAAP or in order to comply become compliant with GAAP;
(xvi) settle any material claim, action or proceeding or waive or release any material rights or material claims;
(xvii) commence any material litigation, action or proceeding (other than to enforce the requirements terms of this Agreement);
(xviii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, plan of arrangement or amalgamation; or
(xix) enter into any agreement to take, or cause to be taken, any of the 1933 Act or the Regulations thereunder, the Company and the Seller will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement comply with such requirements, and within two (2) business days will furnish to the Underwriter as many copies of the Prospectus, as so amended or supplemented, as the Underwriter shall reasonably request. Neither the Underwriter's consent to, or such Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of the conditions actions set forth in this Section 5 hereof7.01(b).
(c) The Company or Without limiting the Sellergenerality of Section 7.01(a), as applicable, will give from the Underwriter reasonable notice of its intention to file any amendment to date hereof until the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act or otherwise, will furnish the Underwriter with copies of any such amendment or supplement or other documents proposed to be filed a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which the Underwriter or its counsel shall object.
(d) The Company or the Seller will notify the Underwriter immediately, and confirm the notice in writingClosing Date, (i) of the effectiveness Company shall promptly notify the Purchaser of any amendment to the Registration Statementsuit, (ii) of the mailing claim, action, assessment, investigation, proceeding or the delivery to the Commission for filing of any supplement to the Prospectus audit pending against or any document other than quarterly and annual reports to be filed pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus Company or any Prospectus Supplement, (iv) of its Subsidiaries in respect of any request by the Commission for any amendment to the Registration Statement Tax and will not settle or any amendment or supplement to the Prospectus or for additional information, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company and the Seller will make every reasonable effort to prevent the issuance of compromise any such stop order andsuit, if any such stop order is issuedclaim, to obtain the lifting thereof at the earliest possible moment.
(e) The Seller will deliver to the Underwriter as many signed and as many conformed copies of the Registration Statement and of each amendment thereto (including exhibits filed therewith action, assessment, investigation, proceeding or incorporated by reference therein and documents incorporated by reference in the Prospectus) as the Underwriter may reasonably request.
(f) The Company and the Seller will endeavor, in cooperation with the Underwriter, to qualify the Certificates for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you may designate, and will maintain or cause to be maintained such qualifications in effect for as long as may be required for the distribution of the Certificates. The Company and the Seller will file or cause the filing of such statements and reports as may be required by the laws of each jurisdiction in which the Certificates have been qualified as above provided.
(g) The Seller will prepare, or cause to be prepared, and file, or cause to be filed, a timely election to treat the Trust as one or more real estate mortgage investment conduits (a "REMIC") for federal income tax purposes and will file, or cause to be filed, such tax returns and take such actions, all on a timely basis, as are required to elect and maintain such status.
(h) Neither the Company nor the Seller will, audit without the Purchaser’s prior written consent of the Underwriter, publicly offer or sell or contract to publicly sell home improvement loan pass-through certificates or home improvement loan pass-through notes or similar securities representing interests in or secured by other home improvement loan related assets for a period of thirty (30) days from the date hereof.
(i) The Seller will file with the Commission within fifteen days of the issuance of the Certificates a current report on Form 8-K setting forth specific information concerning the Certificates and the Loans to the extent that such information is not set forth in the Prospectus. The Seller will also file with the Commission a current report on Form 8-K setting forth all Computational Materials, ABS Term Sheets and Collateral Term Sheets (as such terms are defined herein) provided to the Company or the Seller by any Underwriter within the applicable time periods allotted for such filing pursuant to the No-Action Letters.
(j) In connection with any Computational Materials, ABS Term Sheets or Collateral Term Sheets provided by the Underwriter pursuant to Section 6, the Company and the Seller must receive a letter from [ACCOUNTANT], certified public accountants, satisfactory in form and substance to the Company and the Seller, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company and the Seller, as a result of which they have determined that the information included in the Computational Materials, ABS Term Sheets or Collateral Term Sheets (if any), provided by the Underwriter(s) to the Company or the Seller for filing on Form 8-K pursuant to Section 6 and subsection (i), is accurate except as to such matters that are not deemed by the Company or the Seller to be material. The foregoing letter shall be obtained at the expense of the Company and the Seller.
(k) In the event that the Underwriter must prepare corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets pursuant to Section 6(b)(4), the Seller shall file any corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets no later than two business days following receipt thereof.
(l) The Seller will file with the Commission a Current Report on Form 8-K within fifteen days of each purchase of Subsequent Loans by the Trust (the "Subsequent Transfer Filing"). On or before the final purchase of Subsequent Loans by the Trust and the expiration of the Pre-Funding Period, the Company and the Seller must receive a letter from [ACCOUNTANT], certified public accountants, satisfactory in form and substance to the Company, the Seller and the Underwriter, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company and the Seller, as a result of which they have determined, having examined in accordance with such agreed upon procedures, that (i) the information included in such filing is accurate except as to such matters that are not deemed by the Company, the Seller and the Underwriter to be material and consent; (ii) the Subsequent Loans conform to the related requirements described Company shall not make any change in the Prospectus. The foregoing letter shall be at the expense any method of the Seller.
Tax accounting or Tax accounting practice or policy, other than such changes as are required by Tax law, as applicable; and (miii) On or prior to each Subsequent Closing Date, neither the Company and the Seller nor any Subsidiary shall deliver to the Underwriter, or cause the delivery of, the opinions and officer's certificates, substantially in the form of the items listed in Sections 5 (b), (c), (d), (e) and (f) hereof, each dated the Subsequent Closing Date, with such conforming changes thereto as the Underwriter may reasonably requestmake any Tax election.
Appears in 1 contract
Samples: Securities Purchase Agreement
Covenants of the Company and the Seller. Each of the The Company and the Seller covenants covenant with the Underwriter as follows:
(a) The Company and the Seller will prepare the Prospectus Supplement setting forth the principal amount of the Certificates covered thereby, the price or prices at which the Certificates are to be purchased by the Underwriter from the Trust, either the initial public offering price or prices or the method by which the price or prices by which the Certificates are to be sold will be determined, the selling concession(s) and reallowance(s), if any, any delayed delivery arrangements, and such other information as the Underwriter, the Company and the Seller deem appropriate in connection with the offering of the Certificates. The Seller will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriter as many copies of the Prospectus and such Prospectus Supplement, each Additional Transfer Filing (as defined herein) and each Subsequent Transfer Filing (as defined herein) as the Underwriter shall reasonably request.
(b) If, at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Certificates by notify the Underwriter, any event shall occur or condition exist as a result of which it is necessary, in the opinion of your counsel, counsel for the Company and the Seller, or otherwise, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of circumstances existing at the time it is delivered to a purchaser, not misleading or if it shall be necessary, in the opinion of any such counsel or otherwise, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the Regulations thereunder, the Company and the Seller will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the Registration Statement comply with such requirements, and within two (2) business days will furnish to the Underwriter as many copies of the Prospectus, as so amended or supplemented, as the Underwriter shall reasonably request. Neither the Underwriter's consent to, or such Underwriter's delivery of, any such amendment or supplement shall constitute a waiver of the conditions set forth in Section 5 hereof.
(c) The Company or the Seller, as applicable, will give the Underwriter reasonable notice of its intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act or otherwise, will furnish the Underwriter with copies of any such amendment or supplement or other documents proposed to be filed a reasonable time in advance of filing, and will not file any such amendment or supplement or other documents in a form to which the Underwriter or its counsel shall object.
(d) The Company or the Seller will notify the Underwriter immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, ; (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document other than quarterly and annual reports to be filed pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or any Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, and ; (viii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceedings for that purpose; and (iv) of the receipt by the Seller of any notification with respect to the suspension of the qualification of the Certificates for sale in any jurisdiction or the initiation or threatening of any proceedings for that purpose. The Company and the Seller will make every reasonable effort to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(eb) The Seller will give the Underwriter notice of its intention to file or prepare any amendment to the Registration Statement or any amendment or supplement to the Prospectus (including any revised prospectus which the Seller proposes for use by the Underwriter in connection with the offering of the Certificates which differs from the prospectus on file at the Commission at the time the Registration Statement becomes effective, whether or not such revised prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish the Underwriter with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and, unless required by law to do so, will not file any such amendment or supplement or use any such prospectus to which the Underwriter or counsel for the Underwriter shall reasonably object.
(c) The Seller will deliver to the Underwriter as many signed and as many conformed copies of the Registration Statement as originally filed and of each amendment thereto (in each case including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectustherewith) as the Underwriter may reasonably request.
(d) The Seller will furnish to the Underwriter, from time to time during the period when the Prospectus is required to be delivered under the 1933 Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"), such number of copies of the Prospectus (as amended or supplemented) as the Underwriter may reasonably request for the purposes contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriter, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Seller will forthwith amend or supplement the Prospectus (in form and substance satisfactory to counsel for the Underwriter) so that, as so amended or supplemented, the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a purchaser, not misleading, and the Seller will furnish to the Underwriter a reasonable number of copies of such amendment or supplement.
(f) The Company and the Seller will endeavor, in cooperation with the Underwriter, to qualify the Certificates for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as you the Underwriter may designate; PROVIDED, and will maintain or cause HOWEVER, that Seller shall not be obligated to be maintained such qualifications qualify as a foreign corporation in effect for as long as may be required for any jurisdiction in which it is not so qualified. In each jurisdiction in which the distribution of the Certificates. The Company and Certificates have been so qualified, the Seller will file or cause the filing of such statements and reports as may be required by the laws of each such jurisdiction to continue such qualification in which the Certificates have been qualified as above provided.
(g) The Seller will prepare, or cause to be prepared, and file, or cause to be filed, a timely election to treat the Trust as one or more real estate mortgage investment conduits (a "REMIC") for federal income tax purposes and will file, or cause to be filed, such tax returns and take such actions, all on a timely basis, as are required to elect and maintain such status.
(h) Neither the Company nor the Seller will, without the prior written consent of the Underwriter, publicly offer or sell or contract to publicly sell home improvement loan pass-through certificates or home improvement loan pass-through notes or similar securities representing interests in or secured by other home improvement loan related assets effect for a period of thirty (30) days not less than one year from the date hereof.
(ig) The Seller will file with the Commission within fifteen days of the issuance of the So long as any Certificates a current report on Form 8-K setting forth specific information concerning the Certificates and the Loans to the extent that such information is not set forth in the Prospectus. The Seller will also file with the Commission a current report on Form 8-K setting forth all Computational Materials, ABS Term Sheets and Collateral Term Sheets (as such terms are defined herein) provided to the Company or the Seller by any Underwriter within the applicable time periods allotted for such filing pursuant to the No-Action Letters.
(j) In connection with any Computational Materials, ABS Term Sheets or Collateral Term Sheets provided by the Underwriter pursuant to Section 6, the Company and the Seller must receive a letter from [ACCOUNTANT], certified public accountants, satisfactory in form and substance to the Company and the Seller, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company and the Seller, as a result of which they have determined that the information included in the Computational Materials, ABS Term Sheets or Collateral Term Sheets (if any), provided by the Underwriter(s) to the Company or the Seller for filing on Form 8-K pursuant to Section 6 and subsection (i), is accurate except as to such matters that are not deemed by the Company or the Seller to be material. The foregoing letter shall be obtained at the expense of the Company and the Seller.
(k) In the event that the Underwriter must prepare corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets pursuant to Section 6(b)(4)outstanding, the Seller shall file any corrected Computational Materials, ABS Term Sheets or Collateral Term Sheets no later than two business days following receipt thereof.
(l) The Seller will file with the Commission a Current Report on Form 8-K within fifteen days of each purchase of Subsequent Loans by the Trust (the "Subsequent Transfer Filing"). On or before the final purchase of Subsequent Loans by the Trust and the expiration of the Pre-Funding Period, the Company and the Seller must receive a letter from [ACCOUNTANT], certified public accountants, satisfactory in form and substance to the Company, the Seller and the Underwriter, to the effect that such accountants have performed certain specified procedures, all of which have been agreed to by the Company and the Seller, as a result of which they have determined, having examined in accordance with such agreed upon procedures, that (i) the information included in such filing is accurate except as to such matters that are not deemed by the Company, the Seller and the Underwriter to be material and (ii) the Subsequent Loans conform to the related requirements described in the Prospectus. The foregoing letter shall be at the expense of the Seller.
(m) On or prior to each Subsequent Closing Date, the Company and the Seller shall deliver to the Underwriter, as promptly as practicable, such information concerning the Seller or cause the delivery of, the opinions and officer's certificates, substantially in the form of the items listed in Sections 5 (b), (c), (d), (e) and (f) hereof, each dated the Subsequent Closing Date, with such conforming changes thereto Certificates as the Underwriter may reasonably requestrequest from time to time.
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Samples: Underwriting Agreement (Money Store Commercial Mortgage Inc)
