Covenants of the Depositor and the Sponsor. The Depositor and the Sponsor (only with respect to clause (m) below) covenant and agree with the Underwriters that: (a) The Depositor shall furnish to the Representatives, without charge, during the period mentioned in Section 6(e) below, as many copies of the Final Prospectus and any supplements and amendments thereof or thereto as the Representatives may reasonably request. (b) The Depositor has filed or shall file each Preliminary Prospectus pursuant to and in accordance with Rule 424(h) not later than the third business day before the Applicable Time. (c) The Depositor shall prepare and file the Final Prospectus pursuant to and in accordance with Rule 424(b) not later than the second business day following the Applicable Time. (d) The Depositor shall advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Final Prospectus and shall consult with them and their counsel with respect to any comments they may have on any such proposed amendment or supplement; provided, however, that no such advice or consultation shall be necessary for Exchange Act reports filed by the Depositor in the ordinary course that contain opinions, the Basic Documents or related agreements, monthly distribution reports, annual reports and suspension of duty to report notices. (e) If, at any time when a prospectus relating to the Offered Notes is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Final Preliminary Prospectus or the Final Prospectus as then amended or supplemented would 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 the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Preliminary Prospectus or the Final Prospectus to comply with the Act, the Depositor promptly shall (1) notify the Representatives of such event and (2) prepare and file with the Commission, subject to paragraph (d) of this Section 6, an amendment or supplement which will correct such statement or omission or effect such compliance. (f) The Depositor represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter, severally and not jointly, represents and agrees with the Depositor that, unless it obtains the prior consent of the Depositor, it has not made and will not make any offer relating to the Offered Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus; provided, however, that the prior consent of the parties hereto shall be deemed to have been given with respect to the Free Writing Prospectuses included in Schedule 3 and Schedule 4 hereto, in the Intex CDI files as described in Section 5(d)(i) above, the Bloomberg Information and the information described in Section 5(d)(iii) above. (g) The Depositor shall take such action in order to exempt the Offered Notes from the qualification for offer and sale under the securities or “Blue Sky” laws of such jurisdictions as the Representatives shall reasonably request and to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such exemption and in connection with the determination of the legality of the Offered Notes for purchase under the laws of such jurisdictions as the Representatives may designate. Thereafter, until all of the Offered Notes have been retired, the Depositor shall arrange for the filing and making of, and shall pay all fees applicable to, such statements and reports and renewals of registration necessary in order to continue to exempt the Offered Notes for secondary market transactions in the various jurisdictions in which the Offered Notes were originally exempted for sale. (h) For a period from the date of this Agreement until the retirement of the Offered Notes, or until such time as no Underwriter shall continue to maintain a secondary market in the Offered Notes, whichever first occurs, the Depositor shall deliver or cause to be delivered to the Representatives, upon request, the Servicer’s annual statement as to compliance pursuant to Section 4.01(a) of the Servicing Agreement concerning Item 1123 of Regulation AB and the Report of Assessment of Compliance with Servicing Criteria furnished to the Indenture Trustee and the Owner Trustee pursuant to Section 4.02(a) of the Servicing Agreement concerning Item 1122 of Regulation AB, promptly after the same are furnished to the Indenture Trustee and the Owner Trustee. (i) So long as any of the Offered Notes are outstanding, the Depositor shall furnish to the Representatives (i) as soon as available, a copy of each report of the Depositor filed with the Commission under the Exchange Act or mailed to the holders of the Offered Notes, and (ii) from time to time, such other information concerning the Depositor as the Representatives may reasonably request. (j) Whether or not the transactions contemplated by this Agreement are consummated, the Depositor shall pay or cause to be paid all expenses incident to the performance of the Depositor’s obligations under this Agreement, and shall pay or cause to be paid or shall reimburse the Underwriters for (i) any reasonable expenses (including reasonable fees and disbursements of outside counsel) incurred by them in connection with the qualification or exemption of the Offered Notes for offer and sale and the determination of their legality for purchase under the laws of such jurisdictions as the Representatives have reasonably requested pursuant to Section 6(g) and the printing of memoranda relating thereto, (ii) any fees charged by investment rating agencies for the rating of the Offered Notes, and (iii) reasonable expenses incurred in printing, if applicable, and distributing any Preliminary Prospectus and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters. (k) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 7(j) is conditioned upon the furnishing of documents or the taking of other actions by the Depositor on or after the Closing Date, the Depositor shall furnish such documents and take such other actions. (l) If, during the period after the Closing Date in which a prospectus relating to the Offered Notes is required to be delivered under the Act, the Depositor receives notice that a stop order suspending the effectiveness of the Registration Statement or preventing the offer and sale of the Offered Notes is in effect, the Depositor shall advise the Representatives of the issuance of such stop order. (m) The Depositor and the Sponsor each acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Depositor and the Sponsor with respect to the offering of the Offered Notes contemplated hereby (including in connection with determining the terms of the offering) and not as a fiduciary to, or an agent of, the Depositor, the Sponsor or any other person. Additionally, no Underwriter is advising the Depositor, the Sponsor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Depositor and the Sponsor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Depositor, the Sponsor or any other person with respect thereto. Any review by the Underwriters of the Depositor, the Sponsor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Depositor, the Sponsor or any other party.
Appears in 6 contracts
Samples: Underwriting Agreement (Ally Auto Receivables Trust 2019-4), Underwriting Agreement (Ally Auto Receivables Trust 2019-3), Underwriting Agreement (Ally Auto Receivables Trust 2019-2)
Covenants of the Depositor and the Sponsor. The Depositor and the Sponsor (only with respect to clause (m) below) covenant and agree with the Underwriters that:
(a) The Depositor shall furnish to the Representatives, without charge, during the period mentioned in Section 6(e) below, as many copies of the Final Prospectus and any supplements and amendments thereof or thereto as the Representatives may reasonably request.
(b) The Depositor has filed or shall file each Preliminary Prospectus pursuant to and in accordance with Rule 424(h) not later than the third business day before the Applicable Time.
(c) The Depositor shall prepare and file the Final Prospectus pursuant to and in accordance with Rule 424(b) not later than the second business day following the Applicable Time.
(d) The Depositor shall advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Final Prospectus and shall consult with them and their counsel with respect to any comments they may have on any such proposed amendment or supplement; provided, however, that no such advice or consultation shall be necessary for Exchange Act reports filed by the Depositor in the ordinary course that contain opinions, the Basic Documents or related agreements, monthly distribution reports, annual reports and suspension of duty to report notices.
(e) If, at any time when a prospectus relating to the Offered Notes is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Final Preliminary Prospectus or the Final Prospectus as then amended or supplemented would 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 the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Preliminary Prospectus or the Final Prospectus to comply with the Act, the Depositor promptly shall (1) notify the Representatives of such event and (2) prepare and file with the Commission, subject to paragraph (d) of this Section 6, an amendment or supplement which will correct such statement or omission or effect such compliance.
(f) The Depositor represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter, severally and not jointly, represents and agrees with the Depositor that, unless it obtains the prior consent of the Depositor, it has not made and will not make any offer relating to the Offered Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus; provided, however, that the prior consent of the parties hereto shall be deemed to have been given with respect to the Free Writing Prospectuses included in Schedule 3 and Schedule 4 hereto, in the Intex CDI files file as described in Section 5(d)(i) above, the Bloomberg Information and the information described in Section 5(d)(iii) above.
(g) The Depositor shall take such action in order to exempt the Offered Notes from the qualification for offer and sale under the securities or “Blue Sky” laws of such jurisdictions as the Representatives shall reasonably request and to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such exemption and in connection with the determination of the legality of the Offered Notes for purchase under the laws of such jurisdictions as the Representatives may designate. Thereafter, until all of the Offered Notes have been retired, the Depositor shall arrange for the filing and making of, and shall pay all fees applicable to, such statements and reports and renewals of registration necessary in order to continue to exempt the Offered Notes for secondary market transactions in the various jurisdictions in which the Offered Notes were originally exempted for sale.
(h) For a period from the date of this Agreement until the retirement of the Offered Notes, or until such time as no Underwriter shall continue to maintain a secondary market in the Offered Notes, whichever first occurs, the Depositor shall deliver or cause to be delivered to the Representatives, upon request, the Servicer’s annual statement as to compliance pursuant to Section 4.01(a) of the Servicing Agreement concerning Item 1123 of Regulation AB and the Report of Assessment of Compliance with Servicing Criteria furnished to the Indenture Trustee and the Owner Trustee pursuant to Section 4.02(a) of the Servicing Agreement concerning Item 1122 of Regulation AB, promptly after the same are furnished to the Indenture Trustee and the Owner Trustee.
(i) So long as any of the Offered Notes are outstanding, the Depositor shall furnish to the Representatives (i) as soon as available, a copy of each report of the Depositor filed with the Commission under the Exchange Act or mailed to the holders of the Offered Notes, and (ii) from time to time, such other information concerning the Depositor as the Representatives may reasonably request.
(j) Whether or not the transactions contemplated by this Agreement are consummated, the Depositor shall pay or cause to be paid all expenses incident to the performance of the Depositor’s obligations under this Agreement, and shall pay or cause to be paid or shall reimburse the Underwriters for (i) any reasonable expenses (including reasonable fees and disbursements of outside counsel) incurred by them in connection with the qualification or exemption of the Offered Notes for offer and sale and the determination of their legality for purchase under the laws of such jurisdictions as the Representatives have reasonably requested pursuant to Section 6(g) and the printing of memoranda relating thereto, (ii) any fees charged by investment rating agencies for the rating of the Offered Notes, and (iii) reasonable expenses incurred in printing, if applicable, and distributing any Preliminary Prospectus and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters.
(k) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 7(j) is conditioned upon the furnishing of documents or the taking of other actions by the Depositor on or after the Closing Date, the Depositor shall furnish such documents and take such other actions.
(l) If, during the period after the Closing Date in which a prospectus relating to the Offered Notes is required to be delivered under the Act, the Depositor receives notice that a stop order suspending the effectiveness of the Registration Statement or preventing the offer and sale of the Offered Notes is in effect, the Depositor shall advise the Representatives of the issuance of such stop order.
(m) The Depositor and the Sponsor each acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Depositor and the Sponsor with respect to the offering of the Offered Notes contemplated hereby (including in connection with determining the terms of the offering) and not as a fiduciary to, or an agent of, the Depositor, the Sponsor or any other person. Additionally, no Underwriter is advising the Depositor, the Sponsor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Depositor and the Sponsor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Depositor, the Sponsor or any other person with respect thereto. Any review by the Underwriters of the Depositor, the Sponsor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Depositor, the Sponsor or any other party.
Appears in 4 contracts
Samples: Underwriting Agreement (Ally Auto Receivables Trust 2024-2), Underwriting Agreement (Ally Auto Receivables Trust 2024-1), Underwriting Agreement (Ally Auto Receivables Trust 2023-1)
Covenants of the Depositor and the Sponsor. The Depositor and the Sponsor (only with respect to clause (m) below) covenant and agree with the Underwriters that:
(a) The Depositor shall furnish to the Representatives, without charge, during the period mentioned in Section 6(e) below, as many copies of the Final Prospectus and any supplements and amendments thereof or thereto as the Representatives may reasonably request.
(b) The Depositor has filed or shall file each Preliminary Prospectus pursuant to and in accordance with Rule 424(h) not later than the third business day before the Applicable Time.
(c) The Depositor shall prepare and file the Final Prospectus pursuant to and in accordance with Rule 424(b) not later than the second business day following the Applicable Time.
(d) The Depositor shall advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Final Prospectus and shall consult with them and their counsel with respect to any comments they may have on any such proposed amendment or supplement; provided, however, that no such advice or consultation shall be necessary for Exchange Act reports filed by the Depositor in the ordinary course that contain opinions, the Basic Documents or related agreements, monthly distribution reports, annual reports and suspension of duty to report notices.
(e) If, at any time when a prospectus relating to the Offered Notes is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Final Preliminary Prospectus or the Final Prospectus as then amended or supplemented would 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 the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Preliminary Prospectus or the Final Prospectus to comply with the Act, the Depositor promptly shall (1) notify the Representatives of such event and (2) prepare and file with the Commission, subject to paragraph (d) of this Section 6, an amendment or supplement which will correct such statement or omission or effect such compliance.
(f) The Depositor represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter, severally and not jointly, represents and agrees with the Depositor that, unless it obtains the prior consent of the Depositor, it has not made and will not make any offer relating to the Offered Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus; provided, however, that the prior consent of the parties hereto shall be deemed to have been given with respect to the Free Writing Prospectuses included in Schedule 3 and Schedule 4 hereto, in the Intex CDI files as described in Section 5(d)(i) above, the Bloomberg Information and the information described in Section 5(d)(iii) above.
(g) The Depositor shall take such action in order to exempt the Offered Notes from the qualification for offer and sale under the securities or “Blue Sky” laws of such jurisdictions as the Representatives shall reasonably request and to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such exemption and in connection with the determination of the legality of the Offered Notes for purchase under the laws of such jurisdictions as the Representatives may designate. Thereafter, until all of the Offered Notes have been retired, the Depositor shall arrange for the filing and making of, and shall pay all fees applicable to, such statements and reports and renewals of registration necessary in order to continue to exempt the Offered Notes for secondary market transactions in the various jurisdictions in which the Offered Notes were originally exempted for sale.
(h) For a period from the date of this Agreement until the retirement of the Offered Notes, or until such time as no Underwriter shall continue to maintain a secondary market in the Offered Notes, whichever first occurs, the Depositor shall deliver or cause to be delivered to the Representatives, upon request, the Servicer’s annual statement as to compliance pursuant to Section 4.01(a) of the Trust Sale and Servicing Agreement concerning Item 1123 of Regulation AB and the Report of Assessment of Compliance with Servicing Criteria furnished to the Indenture Trustee and the Owner Trustee pursuant to Section 4.02(a) of the Trust Sale and Servicing Agreement concerning Item 1122 of Regulation AB, promptly after the same are furnished to the Indenture Trustee and the Owner Trustee.
(i) So long as any of the Offered Notes are outstanding, the Depositor shall furnish to the Representatives (i) as soon as available, a copy of each report of the Depositor filed with the Commission under the Exchange Act or mailed to the holders of the Offered Notes, and (ii) from time to time, such other information concerning the Depositor as the Representatives may reasonably request.
(j) Whether or not the transactions contemplated by this Agreement are consummated, the Depositor shall pay or cause to be paid all expenses incident to the performance of the Depositor’s obligations under this Agreement, and shall pay or cause to be paid or shall reimburse the Underwriters for (i) any reasonable expenses (including reasonable fees and disbursements of outside counsel) incurred by them in connection with the qualification or exemption of the Offered Notes for offer and sale and the determination of their legality for purchase under the laws of such jurisdictions as the Representatives have reasonably requested pursuant to Section 6(g) and the printing of memoranda relating thereto, (ii) any fees charged by investment rating agencies for the rating of the Offered Notes, and (iii) reasonable expenses incurred in printing, if applicable, and distributing any Preliminary Prospectus and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters.
(k) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 7(j) is conditioned upon the furnishing of documents or the taking of other actions by the Depositor on or after the Closing Date, the Depositor shall furnish such documents and take such other actions.
(l) If, during the period after the Closing Date in which a prospectus relating to the Offered Notes is required to be delivered under the Act, the Depositor receives notice that a stop order suspending the effectiveness of the Registration Statement or preventing the offer and sale of the Offered Notes is in effect, the Depositor shall advise the Representatives of the issuance of such stop order.
(m) The Depositor and the Sponsor each acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Depositor and the Sponsor with respect to the offering of the Offered Notes contemplated hereby (including in connection with determining the terms of the offering) and not as a fiduciary to, or an agent of, the Depositor, the Sponsor or any other person. Additionally, no Underwriter is advising the Depositor, the Sponsor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Depositor and the Sponsor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Depositor, the Sponsor or any other person with respect thereto. Any review by the Underwriters of the Depositor, the Sponsor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Depositor, the Sponsor or any other party.
Appears in 4 contracts
Samples: Underwriting Agreement (Ally Master Owner Trust), Underwriting Agreement (Ally Master Owner Trust), Underwriting Agreement (Ally Master Owner Trust)
Covenants of the Depositor and the Sponsor. The Depositor and the Sponsor (only with respect to clause (m) below) covenant and agree with the Underwriters that:
(a) The Depositor shall furnish to the Representatives, without charge, during the period mentioned in Section 6(e) below, as many copies of the Final Prospectus and any supplements and amendments thereof or thereto as the Representatives may reasonably request.
(b) The Depositor has filed or shall file each Preliminary Prospectus pursuant to and in accordance with Rule 424(h) not later than the third business day before the Applicable Time.
(c) The Depositor shall prepare and file the Final Prospectus pursuant to and in accordance with Rule 424(b) not later than the second business day following the Applicable Time.
(d) The Depositor shall advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Final Prospectus and shall consult with them and their counsel with respect to any comments they may have on any such proposed amendment or supplement; provided, however, that no such advice or consultation shall be necessary for Exchange Act reports filed by the Depositor in the ordinary course that contain opinions, the Basic Documents or related agreements, monthly distribution reports, annual reports and suspension of duty to report notices.
(e) If, at any time when a prospectus relating to the Offered Notes is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Final Preliminary Prospectus or the Final Prospectus as then amended or supplemented would 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 the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Preliminary Prospectus or the Final Prospectus to comply with the Act, the Depositor promptly shall (1) notify the Representatives of such event and (2) prepare and file with the Commission, subject to paragraph (d) of this Section 6, an amendment or supplement which will correct such statement or omission or effect such compliance.
(f) The Depositor represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter, severally and not jointly, represents and agrees with the Depositor that, unless it obtains the prior consent of the Depositor, it has not made and will not make any offer relating to the Offered Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus; provided, however, that the prior consent of the parties hereto shall be deemed to have been given with respect to the Free Writing Prospectuses included in Schedule 3 and Schedule 4 hereto, in the Intex CDI files file as described in Section 5(d)(i) above, the Bloomberg Information and the information described in Section 5(d)(iii) above.
(g) The Depositor shall take such action in order to exempt the Offered Notes from the qualification for offer and sale under the securities or “Blue Sky” laws of such jurisdictions as the Representatives shall reasonably request and to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such exemption and in connection with the determination of the legality of the Offered Notes for purchase under the laws of such jurisdictions as the Representatives may designate. Thereafter, until all of the Offered Notes have been retired, the Depositor shall arrange for the filing and making of, and shall pay all fees applicable to, such statements and reports and renewals of registration necessary in order to continue to exempt the Offered Notes for secondary market transactions in the various jurisdictions in which the Offered Notes were originally exempted for sale.
(h) For a period from the date of this Agreement until the retirement of the Offered Notes, or until such time as no Underwriter shall continue to maintain a secondary market in the Offered Notes, whichever first occurs, the Depositor shall deliver or cause to be delivered to the Representatives, upon request, the Servicer’s annual statement as to compliance pursuant to Section 4.01(a) of the Servicing Agreement concerning Item 1123 of Regulation AB and the Report of Assessment of Compliance with Servicing Criteria furnished to the Indenture Trustee and the Owner Trustee pursuant to Section 4.02(a) of the Servicing Agreement concerning Item 1122 of Regulation AB, promptly after the same are furnished to the Indenture Trustee and the Owner Trustee.
(i) So long as any of the Offered Notes are outstanding, the Depositor shall furnish to the Representatives (i) as soon as available, a copy of each report of the Depositor filed with the Commission under the Exchange Act or mailed to the holders of the Offered Notes, and (ii) from time to time, such other information concerning the Depositor as the Representatives may reasonably request.
(j) Whether or not the transactions contemplated by this Agreement are consummated, the Depositor shall pay or cause to be paid all expenses incident to the performance of the Depositor’s obligations under this Agreement, and shall pay or cause to be paid or shall reimburse the Underwriters for (i) any reasonable expenses (including reasonable fees and disbursements of outside counsel) incurred by them in connection with the qualification or exemption of the Offered Notes for offer and sale and the determination of their legality for purchase under the laws of such jurisdictions as the Representatives have reasonably requested pursuant to Section 6(g) and the printing of memoranda relating thereto, (ii) any fees charged by investment rating agencies for the rating of the Offered Notes, and (iii) reasonable expenses incurred in printing, if applicable, and distributing any Preliminary Prospectus and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters.
(k) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 7(j) is conditioned upon the furnishing of documents or the taking of other actions by the Depositor on or after the Closing Date, the Depositor shall furnish such documents and take such other actions.
(l) If, during the period after the Closing Date in which a prospectus relating to the Offered Notes is required to be delivered under the Act, the Depositor receives notice that a stop order suspending the effectiveness of the Registration Statement or preventing the offer and sale of the Offered Notes is in effect, the Depositor shall advise the Representatives of the issuance of such stop order.
(m) The Depositor and the Sponsor each acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Depositor and the Sponsor with respect to the offering of the Offered Notes contemplated hereby (including in connection with determining the terms of the offering) and not as a fiduciary to, or an agent of, the Depositor, the Sponsor or any other person. Additionally, no Underwriter is advising the Depositor, the Sponsor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Depositor and the Sponsor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Depositor, the Sponsor or any other person with respect thereto. Any review by the Underwriters of the Depositor, the Sponsor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Depositor, the Sponsor or any other party.
Appears in 2 contracts
Samples: Underwriting Agreement (Ally Auto Receivables Trust 2022-2), Underwriting Agreement (Ally Auto Receivables Trust 2022-1)
Covenants of the Depositor and the Sponsor. The In further consideration of the agreements of the Underwriters contained in the Underwriting Agreement, the Depositor and the Sponsor (only with respect to clause (m) below) Sponsor, as applicable, covenant and agree with the Underwriters thatas follows:
(a) The Depositor shall To furnish to the RepresentativesRepresentative, without charge, during copies of the period mentioned in Section 6(e) below, Registration Statement and any amendments thereto including exhibits and as many copies of the Final Prospectus and any supplements and amendments thereof or thereto as the Representatives Representative may from time to time reasonably request.
(b) Immediately following the execution of the Underwriting Agreement, the Depositor will prepare a prospectus supplement setting forth the principal amount, notional amount or stated amount, as applicable, of Offered Securities covered thereby, the price at which the Offered Securities are to be purchased by the Underwriters from the Depositor, either the initial public offering price or prices or the method by which the price or prices at which the Offered Securities are to be sold will be determined, the selling concessions and reallowances, if any, any delayed delivery arrangements, and such other information as the Representative and the Depositor deem appropriate in connection with the offering of the Offered Securities, but the Sponsor will not file any amendment to the Registration Statement or any supplement to the Prospectus of which the Representative shall not previously have been advised and furnished with a copy a reasonable time prior to the proposed filing or to which the Representative shall have reasonably objected. The Sponsor will use its best efforts to cause any amendment to the Registration Statement to become effective as promptly as possible. During the time when a Prospectus is required to be delivered under the 1933 Act, the Depositor has filed will comply so far as it is able with all requirements imposed upon it by the 1933 Act and the rules and regulations thereunder to the extent necessary to permit the continuance of sales or shall file each Preliminary Prospectus pursuant to and of dealings in the Offered Securities in accordance with Rule 424(h) not later than the third business day before provisions hereof and of the Applicable TimeProspectus, and the Depositor will prepare and file with the Commission, promptly upon request by the Representative, any amendments to the Registration Statement or supplements to the Prospectus which may be necessary or advisable in connection with the distribution of the Offered Securities by the Underwriters, and will use its best efforts to cause the same to become effective as promptly as possible. The Sponsor will advise the Representative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement or any amended Registration Statement has become effective or any supplement to the Prospectus or any amended Prospectus has been filed. The Sponsor will advise the Representative, promptly after it receives notice or obtains knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary Prospectus or the Prospectus, or the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceeding for any such purpose, or of any request made by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information, and the Sponsor will use its best efforts to prevent the issuance of any such stop order or any order suspending any such qualification, and if any such order is issued, to obtain the lifting thereof as promptly as possible.
(c) The Depositor shall prepare and file the Final Prospectus pursuant to and in accordance with Rule 424(b) not later than the second business day following the Applicable Time.
(d) The Depositor shall advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Final Prospectus and shall consult with them and their counsel with respect to any comments they may have on any such proposed amendment or supplement; provided, however, that no such advice or consultation shall be necessary for Exchange Act reports filed by the Depositor in the ordinary course that contain opinions, the Basic Documents or related agreements, monthly distribution reports, annual reports and suspension of duty to report notices.
(e) If, at any time when a prospectus relating to the Offered Notes Securities is (or but for the exemption in Rule 172 would be required to be) be delivered under the Act in connection with sales by any Underwriter or dealer1933 Act, any event occurs as a result of which the Final Preliminary Prospectus or the Final Prospectus as then amended or supplemented would include an any untrue statement of a material fact fact, or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at for any time other reason to amend the Registration Statement or supplement the Final Preliminary Prospectus or the Final Prospectus to comply with the 1933 Act, the Depositor to promptly shall (1) notify the Representatives of such event Representative thereof and (2) upon their request to prepare and file with the Commission, subject to paragraph (d) of this Section 6at the Depositor's own expense, an amendment or supplement which will correct such statement or omission or any amendment which will effect such compliance.
(fd) The Depositor represents and agrees that, unless it obtains During the prior consent period when a prospectus is required by law to be delivered in connection with the sale of the RepresentativesOffered Securities pursuant to the Underwriting Agreement, the Sponsor will file, on a timely and each Underwritercomplete basis, severally and not jointly, represents and agrees all documents that are required to be filed by the Sponsor with the Depositor thatCommission pursuant to Sections 13, unless it obtains the prior consent 14, or 15(d) of the Depositor, it has not made and will not make any offer relating to the Offered Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus; provided, however, that the prior consent of the parties hereto shall be deemed to have been given with respect to the Free Writing Prospectuses included in Schedule 3 and Schedule 4 hereto, in the Intex CDI files as described in Section 5(d)(i) above, the Bloomberg Information and the information described in Section 5(d)(iii) above1934 Act.
(ge) The Depositor shall take such action in order to exempt To qualify the Offered Notes from the qualification Securities for offer and sale under the securities or “"Blue Sky” " laws of such jurisdictions as the Representatives Representative shall reasonably request and to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such exemption and in connection with the determination qualification of the legality eligibility of the Offered Notes Securities for purchase investment under the laws of such jurisdictions as the Representatives Representative may designate. Thereafterdesignate provided that in connection therewith the Sponsor shall not be required to qualify to do business or to file a general consent to service of process in any jurisdiction.
(f) To make generally available to the Sponsor's security holders, until all as soon as practicable, but in any event not later than eighteen months after the date on which the filing of the Prospectus, as amended or supplemented, pursuant to Rule 424 under the 1933 Act first occurs, an earnings statement of the Sponsor covering a twelve-month period beginning after the date of the Underwriting Agreement, which shall satisfy the provisions of Section 11(a) of the 1933 Act and the applicable rules and regulations of the Commission thereunder (including, at the option of the Depositor, Rule 158).
(g) For so long as any of the Offered Notes have been retiredSecurities remain outstanding, to furnish to the Representative upon request in writing copies of such financial statements and other periodic and special reports as the Sponsor may from time to time distribute generally to its creditors or the holders of the Offered Securities and to furnish to the Representative copies of each annual or other report the Depositor shall arrange for be required to file with the filing and making of, and shall pay all fees applicable to, such statements and reports and renewals of registration necessary in order to continue to exempt the Offered Notes for secondary market transactions in the various jurisdictions in which the Offered Notes were originally exempted for saleCommission.
(h) For a period from the date of this Agreement until the retirement of the Offered Notes, or until such time as no Underwriter shall continue to maintain a secondary market in the Offered Notes, whichever first occurs, the Depositor shall deliver or cause to be delivered to the Representatives, upon request, the Servicer’s annual statement as to compliance pursuant to Section 4.01(a) of the Servicing Agreement concerning Item 1123 of Regulation AB and the Report of Assessment of Compliance with Servicing Criteria furnished to the Indenture Trustee and the Owner Trustee pursuant to Section 4.02(a) of the Servicing Agreement concerning Item 1122 of Regulation AB, promptly after the same are furnished to the Indenture Trustee and the Owner Trustee.
(i) So so long as any of the Offered Notes are Securities remain outstanding, the Depositor shall will, or will cause the Servicer to, furnish to the Representatives (i) Representative, as soon as available, a copy of (i) the annual statement of compliance delivered by the Servicer to the Indenture Trustee under the applicable Sale and Servicing Agreement, (ii) the annual independent public accountants' servicing report furnished to the Indenture Trustee pursuant to the applicable Sale and Servicing Agreement, (iii) each report of regarding the Depositor filed with the Commission under the Exchange Act or Offered Securities mailed to the holders of the Offered Notessuch Securities, and (iiiv) from time to time, such other information concerning the Depositor such Securities as the Representatives Representative may reasonably request.
(j) Whether or not the transactions contemplated by this Agreement are consummated, the Depositor shall pay or cause to be paid all expenses incident to the performance of the Depositor’s obligations under this Agreement, and shall pay or cause to be paid or shall reimburse the Underwriters for (i) any reasonable expenses (including reasonable fees and disbursements of outside counsel) incurred by them in connection with the qualification or exemption of the Offered Notes for offer and sale and the determination of their legality for purchase under the laws of such jurisdictions as the Representatives have reasonably requested pursuant to Section 6(g) and the printing of memoranda relating thereto, (ii) any fees charged by investment rating agencies for the rating of the Offered Notes, and (iii) reasonable expenses incurred in printing, if applicable, and distributing any Preliminary Prospectus and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters.
(k) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 7(j) is conditioned upon the furnishing of documents or the taking of other actions by the Depositor on or after the Closing Date, the Depositor shall furnish such documents and take such other actions.
(l) If, during the period after the Closing Date in which a prospectus relating to the Offered Notes is required to be delivered under the Act, the Depositor receives notice that a stop order suspending the effectiveness of the Registration Statement or preventing the offer and sale of the Offered Notes is in effect, the Depositor shall advise the Representatives of the issuance of such stop order.
(m) The Depositor and the Sponsor each acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Depositor and the Sponsor with respect to the offering of the Offered Notes contemplated hereby (including in connection with determining the terms of the offering) and not as a fiduciary to, or an agent of, the Depositor, the Sponsor or any other person. Additionally, no Underwriter is advising the Depositor, the Sponsor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Depositor and the Sponsor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Depositor, the Sponsor or any other person with respect thereto. Any review by the Underwriters of the Depositor, the Sponsor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Depositor, the Sponsor or any other party.
Appears in 1 contract
Samples: Underwriting Agreement (Prudential Securities Secured Financing Corp)
Covenants of the Depositor and the Sponsor. The Each of the Depositor and the Sponsor (only with respect to clause (m) below) covenant covenants and agree agrees with the Underwriters that:
(a) The Depositor shall furnish to will file the RepresentativesProspectus, without chargeproperly completed, during with the period mentioned in Section 6(e) below, as many copies of the Final Prospectus and any supplements and amendments thereof or thereto as the Representatives may reasonably request.
(b) The Depositor has filed or shall file each Preliminary Prospectus Commission pursuant to and in accordance with Rule 424(hsubparagraph (2) not later than (or, if applicable and if consented to by the third business day before the Applicable Time.
Representative, subparagraph (c5)) The Depositor shall prepare and file the Final Prospectus pursuant to and in accordance with of Rule 424(b) not no later than the second business day following the Applicable Timeearlier of the date of determination of the offering price or the date it is first used. The Depositor and the Sponsor will advise the Representative promptly of any such filing pursuant to Rule 424(b). Subject to the Underwriters compliance with its obligations set forth in Section 7(h) hereof, the Depositor shall file with the Commission a current report on Form 8-K (the "Current Report") including any Derived Information (as defined herein) provided to it by the Representative pursuant to Section 7(h) hereof (i) no later than the date that the Prospectus Supplement is filed with respect to "computational materials" and "structural terms sheets" (as such terms are interpreted in the No-Action letters addressed to Xxxxxx, Xxxxxxx Acceptance Corporation I, et al. and the Public Securities Association dated May 20, 1994 and February 17, 1995, respectively (collectively, the "PSA Letters") or (ii) no later than two days following their date of first use with respect to "collateral term sheets" (as such term is interpreted in the PSA Letters).
(d) The Depositor shall advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Final Prospectus and shall consult with them and their counsel with respect to any comments they may have on any such proposed amendment or supplement; provided, however, that no such advice or consultation shall be necessary for Exchange Act reports filed by the Depositor in the ordinary course that contain opinions, the Basic Documents or related agreements, monthly distribution reports, annual reports and suspension of duty to report notices.
(ec) If, at any time when a prospectus relating to the Offered Notes Certificates is (or but for the exemption in Rule 172 would be required to be) be delivered under the Act in connection with sales by any an Underwriter or dealer, dealer either (i) any event occurs as a result of which the Final Preliminary Prospectus or the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, made not misleading, or if (ii) for any other reason it is shall be necessary at any time to amend the Registration Statement or supplement the Final Preliminary Prospectus or the Final Prospectus to comply with the Act, the Depositor and the Sponsor promptly shall (1) will notify the Representatives Representative of such event and (2) prepare and file with the Commissionpromptly will prepare, subject to paragraph (d) of this Section 6at their own expense, an amendment or supplement which will correct such statement or omission omission. Neither the Representative's consent to, nor the Underwriters distribution of any amendment or effect such compliancesupplement to the Prospectus shall constitute a waiver of any of the conditions set forth in Section 6 hereof.
(fd) The Depositor represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter, severally and not jointly, represents and agrees with the Depositor that, unless it obtains the prior consent of the Depositor, it has not made and Sponsor will not make any offer relating furnish to the Offered Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Underwriters copies of any preliminary prospectus, the Prospectus; provided, however, that the prior consent of the parties hereto shall be deemed Registration Statement and all amendments and supplements to have been given with respect to the Free Writing Prospectuses included in Schedule 3 and Schedule 4 heretosuch documents, in each case as soon as available and in such quantities as the Intex CDI files as described in Section 5(d)(i) above, the Bloomberg Information and the information described in Section 5(d)(iii) aboveRepresentative reasonably requests.
(ge) The Depositor shall Sponsor will take such action in order all actions which are reasonably necessary to exempt the Offered Notes from arrange for the qualification of the Certificates for offer offering and sale under the securities or “Blue Sky” laws of such jurisdictions as the Representatives shall reasonably request and to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such exemption and in connection with the determination of the legality of the Offered Notes for purchase under the laws of such jurisdictions as the Representatives may designate. Thereafter, until all Representative designates and will continue such qualifications in effect so long as required under such laws for the distribution of the Offered Notes have been retiredCertificates; provided, however, that in no event shall the Depositor shall arrange for the filing and making of, and shall pay all fees applicable to, be obligated to qualify as a foreign corporation or to execute a general or unlimited consent to service of process in any such statements and reports and renewals of registration necessary in order to continue to exempt the Offered Notes for secondary market transactions in the various jurisdictions in which the Offered Notes were originally exempted for salejurisdiction.
(h) For a period from the date of this Agreement until the retirement of the Offered Notes, or until such time as no Underwriter shall continue to maintain a secondary market in the Offered Notes, whichever first occurs, the Depositor shall deliver or cause to be delivered to the Representatives, upon request, the Servicer’s annual statement as to compliance pursuant to Section 4.01(a) of the Servicing Agreement concerning Item 1123 of Regulation AB and the Report of Assessment of Compliance with Servicing Criteria furnished to the Indenture Trustee and the Owner Trustee pursuant to Section 4.02(a) of the Servicing Agreement concerning Item 1122 of Regulation AB, promptly after the same are furnished to the Indenture Trustee and the Owner Trustee.
(i) So long as any of the Offered Notes are outstanding, the Depositor shall furnish to the Representatives (i) as soon as available, a copy of each report of the Depositor filed with the Commission under the Exchange Act or mailed to the holders of the Offered Notes, and (ii) from time to time, such other information concerning the Depositor as the Representatives may reasonably request.
(j) Whether or not the transactions contemplated by this Agreement are consummated, the Depositor shall pay or cause to be paid all expenses incident to the performance of the Depositor’s obligations under this Agreement, and shall pay or cause to be paid or shall reimburse the Underwriters for (i) any reasonable expenses (including reasonable fees and disbursements of outside counsel) incurred by them in connection with the qualification or exemption of the Offered Notes for offer and sale and the determination of their legality for purchase under the laws of such jurisdictions as the Representatives have reasonably requested pursuant to Section 6(g) and the printing of memoranda relating thereto, (ii) any fees charged by investment rating agencies for the rating of the Offered Notes, and (iii) reasonable expenses incurred in printing, if applicable, and distributing any Preliminary Prospectus and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters.
(k) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 7(j) is conditioned upon the furnishing of documents or the taking of other actions by the Depositor on or after the Closing Date, the Depositor shall furnish such documents and take such other actions.
(l) If, during the period after the Closing Date in which a prospectus relating to the Offered Notes is required to be delivered under the Act, the Depositor receives notice that a stop order suspending the effectiveness of the Registration Statement or preventing the offer and sale of the Offered Notes is in effect, the Depositor shall advise the Representatives of the issuance of such stop order.
(mf) The Depositor and the Sponsor each acknowledges shall furnish or make available to the Representative or its counsel such additional documents and agrees that each Underwriter is acting solely information regarding the Depositor and their respective affairs as the Representative may from time to time reasonably request, including any and all documentation reasonably requested in connection with its due diligence efforts regarding information in the capacity Registration Statement and the Prospectus and in order to evidence the accuracy or completeness of an arm’s length contractual counterparty any of the conditions contained in this Underwriting Agreement; and all actions taken by the Depositor to authorize the sale of the Certificates shall be reasonably satisfactory in form and substance to the Representative.
(g) The Depositor and the Sponsor shall, at all times upon request of the Representative or its advisors, or both, from the date hereof through the Closing Date, (i) make available to the Underwriters or their advisors, or both, prior to acceptance of its purchase, such information (in addition to that contained in the Registration Statement and the Prospectus) concerning the offering, the Depositor and any other relevant matters as they possess or can acquire without unreasonable effort or expense and (ii) provide the Underwriters or their advisors, or both, prior to acceptance of its subscription, the opportunity to ask questions of, and receive answers from, the Depositor and the Sponsor with respect to the offering of the Offered Notes contemplated hereby such matters.
(including in connection with determining the terms of the offeringh) and not as a fiduciary to, or an agent of, the Depositor, the Sponsor or any other person. Additionally, no Underwriter is advising the Depositor, the Sponsor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Depositor and the Sponsor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal will cause the Trust to make generally available to Certificateholders, as soon as practicable, but no later than sixteen months after the date hereof, an earnings statement of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Depositor, the Sponsor or any other person with respect thereto. Any review by the Underwriters of the Depositor, the Sponsor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Depositor, the Sponsor or any other party.Trust -8-
Appears in 1 contract
Samples: Underwriting Agreement (Barnett Auto Receivables Corp)
Covenants of the Depositor and the Sponsor. The Depositor and the Sponsor (only with respect to clause (m) below) covenant and agree with the Underwriters that:
(a) The Depositor shall furnish to the Representatives, Representatives without charge, during the period mentioned in Section 6(e) below, as many copies of the Final Prospectus and any supplements and amendments thereof or thereto as the Representatives may reasonably request.
(b) The Depositor has filed or shall file each Preliminary Prospectus pursuant to and in accordance with Rule 424(h) not later than the third business day before the Applicable Time.
(c) The Depositor shall prepare and file the Final Prospectus pursuant to and in accordance with Rule 424(b) not later than the second business day following the Applicable Time.
(d) The Depositor shall advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Final Prospectus and shall consult with them and their counsel with respect to any comments they may have on any such proposed amendment or supplement; provided, however, that no such advice or consultation shall be necessary for Exchange Act reports filed by the Depositor in the ordinary course that contain opinions, the Basic Documents or related agreements, monthly distribution reports, annual reports and suspension of duty to report notices.
(e) (e) If, at any time when a prospectus relating to the Offered Notes is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Final Preliminary Prospectus or the Final Prospectus as then amended or supplemented would 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 the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Preliminary Prospectus or the Final Prospectus to comply with the Act, the Depositor promptly shall (1) notify the Representatives of such event and (2) prepare and file with the Commission, subject to paragraph (d) of this Section 6, an amendment or supplement which will correct such statement or omission or effect such compliance.
(f) The Depositor represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter, severally and not jointly, represents and agrees with the Depositor that, unless it obtains the prior consent of the Depositor, it has not made and will not make any offer relating to the Offered Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus; provided, however, that the prior consent of the parties hereto shall be deemed to have been given with respect to the Free Writing Prospectuses included in Schedule 3 and Schedule 4 hereto, ,[ in the Intex CDI files as described in Section 5(d)(i) above, ,] the Bloomberg Information and the information described in Section 5(d)(iii) above.
(g) The Depositor shall take such action in order to exempt the Offered Notes from the qualification for offer and sale under the securities or “Blue Sky” laws of such jurisdictions as the Representatives shall reasonably request and to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such exemption and in connection with the determination of the legality of the Offered Notes for purchase under the laws of such jurisdictions as the Representatives may designate. Thereafter, until all of the Offered Notes have been retired, the Depositor shall arrange for the filing and making of, and shall pay all fees applicable to, such statements and reports and renewals of registration necessary in order to continue to exempt the Offered Notes for secondary market transactions in the various jurisdictions in which the Offered Notes were originally exempted for sale.
(h) For a period from the date of this Agreement until the retirement of the Offered Notes, or until such time as no Underwriter shall continue to maintain a secondary market in the Offered Notes, whichever first occurs, the Depositor shall deliver or cause to be delivered to the Representatives, upon request, the Servicer’s annual statement as to compliance pursuant to Section 4.01(a) of the Servicing Agreement concerning Item 1123 of Regulation AB and the Report of Assessment of Compliance with Servicing Criteria furnished to the Indenture Trustee and the Owner Trustee pursuant to Section 4.02(a) of the Servicing Agreement concerning Item 1122 of Regulation AB, promptly after the same are furnished to the Indenture Trustee and the Owner Trustee.
(i) So long as any of the Offered Notes are outstanding, the Depositor shall furnish to the Representatives (i) as soon as available, a copy of each report of the Depositor filed with the Commission under the Exchange Act or mailed to the holders of the Offered Notes, and (ii) from time to time, such other information concerning the Depositor as the Representatives may reasonably request.
(j) Whether or not the transactions contemplated by this Agreement are consummated, the Depositor shall pay or cause to be paid all expenses incident to the performance of the Depositor’s obligations under this Agreement, and shall pay or cause to be paid or shall reimburse the Underwriters for (i) any reasonable expenses (including reasonable fees and disbursements of outside counsel) incurred by them in connection with the qualification or exemption of the Offered Notes for offer and sale and the determination of their legality for purchase under the laws of such jurisdictions as the Representatives have reasonably requested pursuant to Section 6(g) and the printing of memoranda relating thereto, (ii) any fees charged by investment rating agencies for the rating of the Offered Notes, and (iii) reasonable expenses incurred in printing, if applicable, and distributing any Preliminary Prospectus and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters.
(k) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 7(j) is conditioned upon the furnishing of documents or the taking of other actions by the Depositor on or after the [Initial] Closing Date, the Depositor shall furnish such documents and take such other actions.
(l) If, during the period after the [Initial] Closing Date in which a prospectus relating to the Offered Notes is required to be delivered under the Act, the Depositor receives notice that a stop order suspending the effectiveness of the Registration Statement or preventing the offer and sale of the Offered Notes is in effect, the Depositor shall advise the Representatives of the issuance of such stop order.
(m) The Depositor and the Sponsor each acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Depositor and the Sponsor with respect to the offering of the Offered Notes contemplated hereby (including in connection with determining the terms of the offering) and not as a fiduciary to, or an agent of, the Depositor, the Sponsor or any other person. Additionally, no Underwriter is advising the Depositor, the Sponsor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Depositor and the Sponsor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Depositor, the Sponsor or any other person with respect thereto. Any review by the Underwriters of the Depositor, the Sponsor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Depositor, the Sponsor or any other party.
Appears in 1 contract
Covenants of the Depositor and the Sponsor. The Depositor and the Sponsor (only with respect to clause (m) below) covenant and agree with the Underwriters that:
(a) The Depositor shall furnish to the Representatives, without charge, during the period mentioned in Section 6(e) below, as many copies of the Final Prospectus and any supplements and amendments thereof or thereto as the Representatives may reasonably request.
(b) The Depositor has filed or shall file each Preliminary Prospectus pursuant to and in accordance with Rule 424(h) not later than the third business day before the Applicable Time.
(c) The Depositor shall prepare and file the Final Prospectus pursuant to and in accordance with Rule 424(b) not later than the second business day following the Applicable Time.
(d) The Depositor shall advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Final Prospectus and shall consult with them and their counsel with respect to any comments they may have on any such proposed amendment or supplement; provided, however, that no such advice or consultation shall be necessary for Exchange Act reports filed by the Depositor in the ordinary course that contain opinions, the Basic Documents or related agreements, monthly distribution reports, annual reports and suspension of duty to report notices.
(e) If, at any time when a prospectus relating to the Offered Notes is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Final Preliminary Prospectus or the Final Prospectus as then amended or supplemented would 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 the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Preliminary Prospectus or the Final Prospectus to comply with the Act, the Depositor promptly shall (1) notify the Representatives of such event and (2) prepare and file with the Commission, subject to paragraph (d) of this Section 6, an amendment or supplement which will correct such statement or omission or effect such compliance.
(f) The Depositor represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter, severally and not jointly, represents and agrees with the Depositor that, unless it obtains the prior consent of the Depositor, it has not made and will not make any offer relating to the Offered Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus; provided, however, that the prior consent of the parties hereto shall be deemed to have been given with respect to the Free Writing Prospectuses included in Schedule 3 and Schedule 4 hereto[, in the Intex CDI files as described in Section 5(d)(i) above, ,] the Bloomberg Information and the information described in Section 5(d)(iii) above.
(g) The Depositor shall take such action in order to exempt the Offered Notes from the qualification for offer and sale under the securities or “Blue Sky” laws of such jurisdictions as the Representatives shall reasonably request and to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such exemption and in connection with the determination of the legality of the Offered Notes for purchase under the laws of such jurisdictions as the Representatives may designate. Thereafter, until all of the Offered Notes have been retired, the Depositor shall arrange for the filing and making of, and shall pay all fees applicable to, such statements and reports and renewals of registration necessary in order to continue to exempt the Offered Notes for secondary market transactions in the various jurisdictions in which the Offered Notes were originally exempted for sale.
(h) For a period from the date of this Agreement until the retirement of the Offered Notes, or until such time as no Underwriter shall continue to maintain a secondary market in the Offered Notes, whichever first occurs, the Depositor shall deliver or cause to be delivered to the Representatives, upon request, the Servicer’s annual statement as to compliance pursuant to Section 4.01(a) of the Trust Sale and Servicing Agreement concerning Item 1123 of Regulation AB and the Report of Assessment of Compliance with Servicing Criteria furnished to the Indenture Trustee and the Owner Trustee pursuant to Section 4.02(a) of the Trust Sale and Servicing Agreement concerning Item 1122 of Regulation AB, promptly after the same are furnished to the Indenture Trustee and the Owner Trustee.
(i) So long as any of the Offered Notes are outstanding, the Depositor shall furnish to the Representatives (i) as soon as available, a copy of each report of the Depositor filed with the Commission under the Exchange Act or mailed to the holders of the Offered Notes, and (ii) from time to time, such other information concerning the Depositor as the Representatives may reasonably request.
(j) Whether or not the transactions contemplated by this Agreement are consummated, the Depositor shall pay or cause to be paid all expenses incident to the performance of the Depositor’s obligations under this Agreement, and shall pay or cause to be paid or shall reimburse the Underwriters for (i) any reasonable expenses (including reasonable fees and disbursements of outside counsel) incurred by them in connection with the (i) qualification or exemption of the Offered Notes for offer and sale and the determination of their legality for purchase under the laws of such jurisdictions as the Representatives have reasonably requested pursuant to Section 6(g5(g) and the printing of memoranda relating thereto, (ii) any fees charged by investment rating agencies for the rating of the Offered Notes, and (iii) reasonable expenses incurred in printing, if applicable, and distributing any Preliminary Prospectus and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters.
(k) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 7(j) is conditioned upon the furnishing of documents or the taking of other actions by the Depositor on or after the Closing Date, the Depositor shall furnish such documents and take such other actions.
(l) If, during the period after the Closing Date in which a prospectus relating to the Offered Notes is required to be delivered under the Act, the Depositor receives notice that a stop order suspending the effectiveness of the Registration Statement or preventing the offer and sale of the Offered Notes is in effect, the Depositor shall advise the Representatives of the issuance of such stop order.
(m) The Depositor and the Sponsor each acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Depositor and the Sponsor with respect to the offering of the Offered Notes contemplated hereby (including in connection with determining the terms of the offering) and not as a fiduciary to, or an agent of, the Depositor, the Sponsor or any other person. Additionally, no Underwriter is advising the Depositor, the Sponsor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Depositor and the Sponsor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and no Underwriter Underwriters shall have any responsibility or liability to the Depositor, the Sponsor or any other person with respect thereto. Any review by the Underwriters of the Depositor, the Sponsor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Depositor, the Sponsor or any other party.
Appears in 1 contract
Samples: Underwriting Agreement (Ally Wholesale Enterprises LLC)
Covenants of the Depositor and the Sponsor. The Depositor and the Sponsor (only with respect to clause (m) below) covenant and agree with the Underwriters that:
(a) The Depositor shall furnish to the Representatives, Representatives without charge, during the period mentioned in Section 6(e) below, as many copies of the Final Prospectus and any supplements and amendments thereof or thereto as the Representatives may reasonably request.
(b) The Depositor has filed or shall file each Preliminary Prospectus pursuant to and in accordance with Rule 424(h) not later than the third business day before the Applicable Time.
(c) The Depositor shall prepare and file the Final Prospectus pursuant to and in accordance with Rule 424(b) not later than the second business day following the Applicable Time.
(d) The Depositor shall advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Final Prospectus and shall consult with them and their counsel with respect to any comments they may have on any such proposed amendment or supplement; provided, however, that no such advice or consultation shall be necessary for Exchange Act reports filed by the Depositor in the ordinary course that contain opinions, the Basic Documents or related agreements, monthly distribution reports, annual reports and suspension of duty to report notices.
(e) If, at any time when a prospectus relating to the Offered Notes is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Final Preliminary Prospectus or the Final Prospectus as then amended or supplemented would 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 the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Preliminary Prospectus or the Final Prospectus to comply with the Act, the Depositor promptly shall (1) notify the Representatives of such event and (2) prepare and file with the Commission, subject to paragraph (d) of this Section 6, an amendment or supplement which will correct such statement or omission or effect such compliance.
(f) The Depositor represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter, severally and not jointly, represents and agrees with the Depositor that, unless it obtains the prior consent of the Depositor, it has not made and will not make any offer relating to the Offered Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus; provided, however, that the prior consent of the parties hereto shall be deemed to have been given with respect to the Free Writing Prospectuses included in Schedule 3 and Schedule 4 hereto, ,[ in the Intex CDI files as described in Section 5(d)(i) above, ,] the Bloomberg Information and the information described in Section 5(d)(iii) above.
(g) The Depositor shall take such action in order to exempt the Offered Notes from the qualification for offer and sale under the securities or “Blue Sky” laws of such jurisdictions as the Representatives shall reasonably request and to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such exemption and in connection with the determination of the legality of the Offered Notes for purchase under the laws of such jurisdictions as the Representatives may designate. Thereafter, until all of the Offered Notes have been retired, the Depositor shall arrange for the filing and making of, and shall pay all fees applicable to, such statements and reports and renewals of registration necessary in order to continue to exempt the Offered Notes for secondary market transactions in the various jurisdictions in which the Offered Notes were originally exempted for sale.
(h) For a period from the date of this Agreement until the retirement of the Offered Notes, or until such time as no Underwriter shall continue to maintain a secondary market in the Offered Notes, whichever first occurs, the Depositor shall deliver or cause to be delivered to the Representatives, upon request, the Servicer’s annual statement as to compliance pursuant to Section 4.01(a) of the Servicing Agreement concerning Item 1123 of Regulation AB and the Report of Assessment of Compliance with Servicing Criteria furnished to the Indenture Trustee and the Owner Trustee pursuant to Section 4.02(a) of the Servicing Agreement concerning Item 1122 of Regulation AB, promptly after the same are furnished to the Indenture Trustee and the Owner Trustee.
(i) So long as any of the Offered Notes are outstanding, the Depositor shall furnish to the Representatives (i) as soon as available, a copy of each report of the Depositor filed with the Commission under the Exchange Act or mailed to the holders of the Offered Notes, and (ii) from time to time, such other information concerning the Depositor as the Representatives may reasonably request.
(j) Whether or not the transactions contemplated by this Agreement are consummated, the Depositor shall pay or cause to be paid all expenses incident to the performance of the Depositor’s obligations under this Agreement, and shall pay or cause to be paid or shall reimburse the Underwriters for (i) any reasonable expenses (including reasonable fees and disbursements of outside counsel) incurred by them in connection with the qualification or exemption of the Offered Notes for offer and sale and the determination of their legality for purchase under the laws of such jurisdictions as the Representatives have reasonably requested pursuant to Section 6(g) and the printing of memoranda relating thereto, (ii) any fees charged by investment rating agencies for the rating of the Offered Notes, and (iii) reasonable expenses incurred in printing, if applicable, and distributing any Preliminary Prospectus and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters.
(k) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 7(j) is conditioned upon the furnishing of documents or the taking of other actions by the Depositor on or after the [Initial] Closing Date, the Depositor shall furnish such documents and take such other actions.
(l) If, during the period after the [Initial] Closing Date in which a prospectus relating to the Offered Notes is required to be delivered under the Act, the Depositor receives notice that a stop order suspending the effectiveness of the Registration Statement or preventing the offer and sale of the Offered Notes is in effect, the Depositor shall advise the Representatives of the issuance of such stop order.
(m) The Depositor and the Sponsor each acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Depositor and the Sponsor with respect to the offering of the Offered Notes contemplated hereby (including in connection with determining the terms of the offering) and not as a fiduciary to, or an agent of, the Depositor, the Sponsor or any other person. Additionally, no Underwriter is advising the Depositor, the Sponsor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Depositor and the Sponsor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Depositor, the Sponsor or any other person with respect thereto. Any review by the Underwriters of the Depositor, the Sponsor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Depositor, the Sponsor or any other party.
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Covenants of the Depositor and the Sponsor. The Depositor and the Sponsor (only with respect to clause (m) below) covenant covenants and agree agrees with the Underwriters that:
(a) The Depositor shall furnish to the Representatives, Representatives without charge, during the period mentioned in Section 6(e) below, as many copies of the Final Prospectus and any supplements and amendments thereof or thereto as the Representatives may reasonably request.
(b) The Depositor has filed or shall file each Preliminary Prospectus pursuant to and in accordance with Rule 424(h) not later than the third business day before the Applicable Time.
(c) The Depositor shall prepare and file the Final Prospectus pursuant to and in accordance with Rule 424(b) not later than the second business day following the Applicable Time.
(d) The Depositor shall advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, any Preliminary Prospectus or the Final Prospectus and shall consult with them and their counsel with respect to any comments they may have on any such proposed amendment or supplement; provided, however, that no such advice or consultation shall be necessary for Exchange Act reports filed by the Depositor in the ordinary course that contain opinions, the Basic Documents or related agreements, monthly distribution reports, annual reports and suspension of duty to report notices.
(e) If, at any time when a prospectus relating to the Offered Notes is (or but for the exemption in Rule 172 would be required to be) delivered under the Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Final Preliminary Prospectus or the Final Prospectus as then amended or supplemented would 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 the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or supplement the Final Preliminary Prospectus or the Final Prospectus to comply with the Act, the Depositor promptly shall (1) notify the Representatives of such event and (2) prepare and file with the Commission, subject to paragraph (d) of this Section 6, an amendment or supplement which will correct such statement or omission or effect such compliance.
(f) The Depositor represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter, severally and not jointly, represents and agrees with the Depositor that, unless it obtains the prior consent of the Depositor, it has not made and will not make any offer relating to the Offered Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing Prospectus; provided, however, that the prior consent of the parties hereto shall be deemed to have been given with respect to the Free Writing Prospectuses included in Schedule 3 and Schedule 4 hereto, in the Intex CDI files as described in Section 5(d)(i) above, the Bloomberg Information and the information described in Section 5(d)(iii) above).
(g) The Depositor shall take such action in order to exempt the Offered Notes from the qualification for offer and sale under the securities or “Blue Sky” laws of such jurisdictions as the Representatives shall reasonably request and to pay all reasonable expenses (including reasonable fees and disbursements of counsel) in connection with such exemption and in connection with the determination of the legality of the Offered Notes for purchase under the laws of such jurisdictions as the Representatives may designate. Thereafter, until all of the Offered Notes have been retired, the Depositor shall arrange for the filing and making of, and shall pay all fees applicable to, such statements and reports and renewals of registration necessary in order to continue to exempt the Offered Notes for secondary market transactions in the various jurisdictions in which the Offered Notes were originally exempted for sale.
(h) For a period from the date of this Agreement until the retirement of the Offered Notes, or until such time as no Underwriter shall continue to maintain a secondary market in the Offered Notes, whichever first occurs, the Depositor shall deliver or cause to be delivered to the Representatives, upon request, the Servicer’s annual statement as to compliance pursuant to Section 4.01(a) of the Servicing Agreement concerning Item 1123 of Regulation AB and the Report of Assessment of Compliance with Servicing Criteria furnished to the Indenture Trustee and the Owner Trustee pursuant to Section 4.02(a) of the Servicing Agreement concerning Item 1122 of Regulation AB, promptly after the same are furnished to the Indenture Trustee and the Owner Trustee.
(i) So long as any of the Offered Notes are outstanding, the Depositor shall furnish to the Representatives (i) as soon as available, a copy of each report of the Depositor filed with the Commission under the Exchange Act or mailed to the holders of the Offered Notes, and (ii) from time to time, such other information concerning the Depositor as the Representatives may reasonably request.
(j) Whether or not the transactions contemplated by this Agreement are consummated, the Depositor shall pay or cause to be paid all expenses incident to the performance of the Depositor’s obligations under this Agreement, and shall pay or cause to be paid or shall reimburse the Underwriters for (i) any reasonable expenses (including reasonable fees and disbursements of outside counsel) incurred by them in connection with the qualification or exemption of the Offered Notes for offer and sale and the determination of their legality for purchase under the laws of such jurisdictions as the Representatives have reasonably requested pursuant to Section 6(g) and the printing of memoranda relating thereto, (ii) any fees charged by investment rating agencies for the rating of the Offered Notes, and (iii) reasonable expenses incurred in printing, if applicable, and distributing any Preliminary Prospectus and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters.
(k) To the extent, if any, that any rating necessary to satisfy the condition set forth in Section 7(j7(k) is conditioned upon the furnishing of documents or the taking of other actions by the Depositor on or after the Closing Date, the Depositor shall furnish such documents and take such other actions.
(l) If, during the period after the Closing Date in which a prospectus relating to the Offered Notes is required to be delivered under the Act, the Depositor receives notice that a stop order suspending the effectiveness of the Registration Statement or preventing the offer and sale of the Offered Notes is in effect, the Depositor shall advise the Representatives of the issuance of such stop order.
(m) The Depositor and the Sponsor each acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Depositor and the Sponsor with respect to the offering of the Offered Notes contemplated hereby (including in connection with determining the terms of the offering) and not as a fiduciary to, or an agent of, the Depositor, the Sponsor or any other person. Additionally, no Underwriter is advising the Depositor, the Sponsor or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Depositor and the Sponsor shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Depositor, the Sponsor or any other person with respect thereto. Any review by the Underwriters of the Depositor, the Sponsor, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Depositor, the Sponsor or any other party.
Appears in 1 contract
Samples: Underwriting Agreement (Ally Auto Receivables Trust 2018-1)
