Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus. (b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale. (c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor. (d) Each Underwriter severally and not jointly represents, warrants and agrees that: (i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and (ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act. (e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor. (f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein. (g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust. (h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended). (i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 5 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Prospectus, the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”)Fees Free Writing Prospectus, each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has, (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer or the Transferor, and (ii) complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom.
(h) Each With respect to each Member State of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each a “Relevant Member State”), each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates an offer of notes which are the subject of the offering contemplated by the Prospectus to the public in that Relevant Member State other than: (i) to any retail investor legal entity which is a “qualified investor” as defined in the EEAProspectus Directive; (ii) to fewer than 150 natural or legal persons per Relevant Member State (other than qualified investors as defined in the Prospectus Directive), and in any such instance only with the prior written consent of the relevant underwriter or underwriters nominated by the Issuer or if no such underwriter has been nominated the prior written consent of the Issuer; or (iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of notes shall require the Issuer, the Transferor or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression “retail investoroffer any notes to the public” in relation to any notes in any Relevant Member State means a person who is one (or more) the communication in any form and by any means of sufficient information on the terms of the following: (i) a retail client offer and the notes to be offered so as defined to enable an investor to decide to purchase or subscribe the notes, as the same may be varied in point (11) of Article 4(1) of that Relevant Member State by any measure implementing the Prospectus Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where in that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Relevant Member State. The expression ‘‘Prospectus Directive’’ means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU), and includes any relevant implementing measure in the Relevant Member State. The countries comprising the ‘‘European Economic Area’’ are Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
(i) Each Underwriter, severally and but not jointly, covenants with the Bank represents and the Transferor that on or prior to the Closing Dateagrees that, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) it has not delivered, and will not deliver without the prior written consent of the Transferor or BBD, any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or BBD, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Bank Transferor or BBD or refer such Hired NRSRO or other nationally recognized statistical rating organization to the Transferor or refer such Rating Agency to the TransferorBBD, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the CertificatesUnderwritten Notes, including information about the characteristics of the Receivables and the legal structure of the CertificatesUnderwritten Notes, or and (b) undertaking credit rating surveillance on the CertificatesUnderwritten Notes, including information about the characteristics and performance of the Receivables, in each case as contemplated by Rule 17g5(a)(3)(iii)(C).
Appears in 5 contracts
Samples: Underwriting Agreement (Barclays Dryrock Issuance Trust), Underwriting Agreement (Barclays Dryrock Funding LLC), Underwriting Agreement (Barclays Bank Delaware)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Class A Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Class A Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Class A Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Class A Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Class A Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Class A Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Class A Certificates, transfer, deposit or otherwise convey any Class A Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Class A Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Class A Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, the Preliminary Prospectus or any other offering material relating to the Class A Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000Act 2000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the TrustTrust or the Transferor.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the United Kingdom. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “EUWA”); (ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended) as it forms part of domestic law by virtue of the EUWA, and the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe for the Certificates.
(i) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the European Economic Area (the “EEA”). For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended)the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II II; or (iii) not a qualified investor as defined in Directive 2003/71/EC Regulation (EU) 2017/1129 (as amended), and the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe for the Certificates.
(ij) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Class A Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Class A Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Class A Certificates, including information about the characteristics and performance of the Receivables.
Appears in 4 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates that are Registered Certificates for sale to the public as set forth in the Preliminary Final Prospectus.
(b) Other than Each Underwriter severally covenants and agrees with the Company as to itself that:
(i) Prior to entering into any Contract of Sale, the Preliminary Prospectus, Underwriter shall convey the Pricing Free Writing Prospectus to each prospective investor.
(ii) Unless preceded or accompanied by a prospectus satisfying the Ratings requirements of Section 10(a) of the Securities Act or access thereto is made available pursuant to Rule 173 of the Securities Act, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Certificates, unless such written communication (1) is made in reliance on Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act or (3) is a Free Writing Prospectus, .
(iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating An Underwriter may convey a Preliminary Term Sheet to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred a potential investor prior to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation entering into a Contract of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless Sale with such Underwriter has obtained the prior written approval of the Transferorinvestor; provided, however, that (x) each such Underwriter may prepare and convey to one or more shall not enter into a Contract of its potential investors one or more “written communications” (as defined in Rule 405 under Sale with such investor unless the Act) containing no more than the following: Underwriter has complied with paragraph (i) information contemplated by Rule 134 under the Act and included or above prior to be included in the Preliminary Prospectussuch Contract of Sale, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each such Underwriter will be permitted shall deliver a copy of the proposed Preliminary Term Sheet to provide confirmations of salethe Depositor and its counsel prior to the anticipated first use and shall not convey any such Preliminary Term Sheet to which the Depositor or its counsel reasonably objects.
(civ) Each An Underwriter severally and not jointly represents and agrees may convey Computational Materials (ix) that it did not enter into any contract of sale for any Certificates to a potential investor prior to the Time entering into a Contract of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for with such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no (A) such Underwriter makes shall not enter into a Contract of Sale with such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to investor unless the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance has complied with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it paragraph (i) has complied and will comply with all applicable provisions above prior to such Contract of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, Sale and (iiB) has only communicated or caused such Computational Materials shall not be disseminated in a manner reasonably designed to be communicated and will only communicate or cause lead to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communicationits broad unrestricted dissemination; provided, however, that if an Underwriter receives an oral communication from such Computational Materials are disseminated in a Rating Agencymanner reasonably designed to lead to its broad unrestricted dissemination, such Underwriter shall file with the Commission such Computational Materials, and (y) to an investor after a Contract of Sale, provided that the Underwriter has complied with paragraph (i) above in connection with such Contract of Sale. The Underwriter shall keep sufficient records of any conveyance of Computational Materials to potential or actual investors and shall maintain such records as required by the Rules and Regulations.
(v) If an Underwriter does not furnish a Free Writing Prospectus that is authorized required to inform be filed with the Commission to the Depositor’s counsel prior to the scheduled print date of the Final Prospectus, such Rating Agency Underwriter will be deemed to have represented that it will respond did not convey any such Free Writing Prospectus to any potential investor.
(vi) Each Free Writing Prospectus shall contain legends that are substantially similar to the oral communication following: The issuer has filed a registration statement (including a prospectus) with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency SEC for the purpose of (a) determining offering to which this free writing prospectus relates. Before you invest, you should read the initial credit rating base prospectus in that registration statement and other documents the issuer has filed with the SEC for the Certificates, including more complete information about the characteristics of the Receivables issuer and the legal structure of the Certificates, or (b) undertaking credit rating surveillance this offering. You may get these documents for free by visiting XXXXX on the CertificatesSEC website at xxx.xxx.xxx. Alternatively, including the issuer, any underwriter or any dealer participating in the offering will arrange to send you the base prospectus if you request it by calling toll-free 0-000-000-0000. This free writing prospectus is not required to contain all information that is required to be included in the base prospectus. The information in this free writing prospectus is preliminary and is subject to completion or change. The information in this free writing prospectus, if conveyed prior to the time of your commitment to purchase, supersedes information contained in any prior similar free writing prospectus relating to these securities. This free writing prospectus is not an offer to sell or a solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. This free writing prospectus is being delivered to you solely to provide you with information about the characteristics and performance offering of the Receivablesoffered certificates referred to in this free writing prospectus and to solicit an indication of your interest in purchasing such offered certificates, when, as and if issued. Any such indication of interest will not constitute a contractual commitment by you to purchase any of the offered certificates. You may withdraw your indication of interest at any time.
(vii) Any Computational Materials shall include legends, in addition to those specified in paragraph (vi) above, substantially similar to the following: The information in this free writing prospectus may be based on preliminary assumptions about the pool assets and the structure. Any such assumptions are subject to change. The information in this free writing prospectus may reflect parameters, metrics or scenarios specifically requested by you. If so, prior to the time of your commitment to purchase, you should request updated information based on any parameters, metrics or scenarios specifically required by you. Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented in this free writing prospectus, although that information may be based in part on loan level data provided by the issuer or its affiliates.
(viii) Each Underwriter severally agrees to retain all Free Writing Prospectuses that it has used and that are not filed pursuant to this Section 4 for a period of three years following the initial bona fide offering of the Registered Certificates.
(c) The following terms shall have the meanings set forth below, unless the context clearly indicates otherwise:
Appears in 4 contracts
Samples: Underwriting Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe1, Asset-Backed Pass-Through Certificates, Series 2006-Wfhe1), Underwriting Agreement (Citigroup Mortgage Loan Trust 2006-He1), Underwriting Agreement (Citigroup Mortgage Loan Trust 2006-He3)
Offering by Underwriters. (a) It is understood that, that after the Effective Date, the Underwriters propose each Underwriter proposes to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Each Underwriter shall comply with all applicable laws and regulations in connection with its use of Free Writing Prospectuses, including but not limited to Rules 164 and 433 of the Act.
(c) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus Additional Information and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or other information approved by the Transferor (the “Permitted Additional Information”)Transferor, each Underwriter severally and not jointly represents, warrants and covenants agrees with the Transferor and the Bank that it has not prepared, made, used, prepared, authorized, approved, disseminated approved or referred to and will not prepare, make, use, prepare, authorize, approve, disseminate approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesNotes, including including, but not limited to to, any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained Act. Notwithstanding the prior written approval of foregoing, the Transferor; provided, however, Transferor agrees that (x) each Underwriter the Underwriters may prepare and convey disseminate information on Bloomberg to one or more of its potential prospective investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: relating solely to (i) information contemplated by of the type identified in Rule 134 under of the Act and included or to be Act, (ii) information included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (iiiii) columns or other entries showing the status of allocations and subscriptions of the subscriptionsNotes, the expected pricing parameters, parameters of the Notes and the yields and weighted average life or the trade date lives of the Certificates Notes, and (iv) information constituting final terms of the Notes within the meaning of Rule 433(d)(5)(ii) under the Act (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations ); provided that in the case of sale.
(c) Each Underwriter severally and not jointly represents and agrees the foregoing clauses (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and through (ii) thativ), during the period prior to the filing of other than the final pricing terms, such Underwriter Free Writing Prospectus (as notified would not be required to be filed with the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investorCommission.
(d) Each Underwriter severally and not jointly represents, warrants and agrees with the Transferor, the Issuer and the Bank that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificatesthe Notes, include any untrue statement of a material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that which was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate written information furnished to the related Underwriter by the Transferor Transferor, the Issuer or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferor, the Issuer or the Bank to the related Underwriter reasonably within a reasonable period of time prior to the time of first use of such Underwriter Free Writing Prospectus; and;
(ii) if required by Rule 433(c)(2)(i) of the Act, each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations Rule 433(c)(2)(i) of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act; and
(iii) each Underwriter Free Writing Prospectus prepared by it shall be delivered to the Transferor no later than the date of first use and, unless otherwise agreed to by the Transferor and the related Underwriter, such delivery shall occur no later than the close of business for the Bank (Central Time) on the date of first use; provided, however, if the date of first use is not a Business Day, such delivery shall occur no later than the close of business for the Bank (Central Time) on the first Business Day after such date of first use.
(e) Each Underwriter, severally and not jointly, represents, warrants Underwriter represents and agrees (i) that it will notdid not enter into any Contract of Sale for any Notes prior to the Time of Sale and (ii) that it will, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesNotes, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without deliver the Preliminary Prospectus to each investor to whom Notes are sold by it during the period prior written consent to the filing of the Transferorfinal Prospectus (as notified to such Underwriter by the Transferor or by the Bank), which delivery shall be prior to the applicable time of any such Contract of Sale with respect to such investor.
(f) Each In the event the Bank, the Transferor or any Underwriter becomes aware that, as of the Time of Sale, any Time of Sale Information contains or contained any untrue statement of material fact or omits or omitted to state any material fact necessary in order to make the statements contained therein in light of the circumstances under which they were made, not misleading (“Defective Information”), such Underwriter, severally the Bank or the Transferor, as applicable, shall promptly notify the Representatives and, in the case of any Underwriter giving such notice, the Transferor, of such untrue statement or omission no later than one Business Day after discovery and not jointlythe Transferor shall prepare and deliver to the Underwriters a Corrected Prospectus. Each Underwriter shall deliver such Corrected Prospectus to any person with whom a Contract of Sale was entered into based on such Defective Information, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver such Underwriter shall provide any such person with adequate disclosure of the Certificates person’s rights under the existing Contract of Sale and a meaningful ability to elect to terminate or distribute not terminate the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus prior Contract of Sale and to elect to enter into or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best not enter into a new Contract of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations Sale based on the Transferor except as information set forth hereinin the Corrected Prospectus.
(g) Each Underwriter, severally and not jointly, represents, warrants represents and agrees that it (ia) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offereddelivered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in deliver without the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) prior written consent of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amendedBank, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information to a Hired NRSRO or other nationally recognized statistical rating organization and (as defined belowb) to it has not participated, and will not participate without the prior written consent of the Bank, in any oral communication regarding Rating Agency Information with any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO, such Underwriter is authorized to inform such Rating Agency Hired NRSRO that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.designated
Appears in 4 contracts
Samples: Underwriting Agreement (First National Funding LLC), Underwriting Agreement (First National Funding LLC), Underwriting Agreement (First National Funding LLC)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates that are Registered Certificates for sale to the public as set forth in the Preliminary Final Prospectus.
(b) Other than Each Underwriter severally covenants and agrees with the Company as to itself that:
(i) Prior to entering into any Contract of Sale, the Preliminary Prospectus, Underwriter shall convey the Pricing Free Writing Prospectus to each prospective investor.
(ii) Unless preceded or accompanied by a prospectus satisfying the Ratings requirements of Section 10(a) of the Securities Act or access thereto is made available pursuant to Rule 173 of the Securities Act, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Certificates, unless such written communication (1) is made in reliance on Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act or (3) is a Free Writing Prospectus, .
(iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating An Underwriter may convey a Preliminary Term Sheet to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred a potential investor prior to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation entering into a Contract of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless Sale with such Underwriter has obtained the prior written approval of the Transferorinvestor; provided, however, that (x) each such Underwriter may prepare and convey to one or more shall not enter into a Contract of its potential investors one or more “written communications” (as defined in Rule 405 under Sale with such investor unless the Act) containing no more than the following: Underwriter has complied with paragraph (i) information contemplated by Rule 134 under the Act and included or above prior to be included in the Preliminary Prospectussuch Contract of Sale, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each such Underwriter will be permitted shall deliver a copy of the proposed Preliminary Term Sheet to provide confirmations of salethe Depositor and its counsel prior to the anticipated first use and shall not convey any such Preliminary Term Sheet to which the Depositor or its counsel reasonably objects.
(civ) Each An Underwriter severally and not jointly represents and agrees may convey Computational Materials (ix) that it did not enter into any contract of sale for any Certificates to a potential investor prior to the Time entering into a Contract of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for with such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no (A) such Underwriter makes shall not enter into a Contract of Sale with such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to investor unless the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance has complied with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it paragraph (i) has complied and will comply with all applicable provisions above prior to such Contract of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, Sale and (iiB) has only communicated or caused such Computational Materials shall not be disseminated in a manner reasonably designed to be communicated and will only communicate or cause lead to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communicationits broad unrestricted dissemination; provided, however, that if an Underwriter receives an oral communication from such Computational Materials are disseminated in a Rating Agencymanner reasonably designed to lead to its broad unrestricted dissemination, such Underwriter shall file with the Commission such Computational Materials, and (y) to an investor after a Contract of Sale, provided that the Underwriter has complied with paragraph (i) above in connection with such Contract of Sale. The Underwriter shall keep sufficient records of any conveyance of Computational Materials to potential or actual investors and shall maintain such records as required by the Rules and Regulations.
(v) If an Underwriter does not furnish a Free Writing Prospectus that is authorized required to inform be filed with the Commission to the Depositor’s counsel prior to the scheduled print date of the Final Prospectus, such Rating Agency Underwriter will be deemed to have represented that it will respond did not convey any such Free Writing Prospectus to any potential investor.
(vi) Each Free Writing Prospectus shall contain legends that are substantially similar to the oral communication following: The issuer has filed a registration statement (including a prospectus) with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency SEC for the purpose of (a) determining offering to which this free writing prospectus relates. Before you invest, you should read the initial credit rating base prospectus in that registration statement and other documents the issuer has filed with the SEC for the Certificates, including more complete information about the characteristics of the Receivables issuer and the legal structure of the Certificates, or (b) undertaking credit rating surveillance this offering. You may get these documents for free by visiting EXXXX on the CertificatesSEC website at wxx.xxx.xxx. Alternatively, including the issuer, any underwriter or any dealer participating in the offering will arrange to send you the base prospectus if you request it by calling toll-free 1-000-000-0000. This free writing prospectus is not required to contain all information that is required to be included in the base prospectus. The information in this free writing prospectus is preliminary and is subject to completion or change. The information in this free writing prospectus, if conveyed prior to the time of your commitment to purchase, supersedes information contained in any prior similar free writing prospectus relating to these securities. This free writing prospectus is not an offer to sell or a solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. This free writing prospectus is being delivered to you solely to provide you with information about the characteristics and performance offering of the Receivablesoffered certificates referred to in this free writing prospectus and to solicit an indication of your interest in purchasing such offered certificates, when, as and if issued. Any such indication of interest will not constitute a contractual commitment by you to purchase any of the offered certificates. You may withdraw your indication of interest at any time.
(vii) Any Computational Materials shall include legends, in addition to those specified in paragraph (vi) above, substantially similar to the following: The information in this free writing prospectus may be based on preliminary assumptions about the pool assets and the structure. Any such assumptions are subject to change. The information in this free writing prospectus may reflect parameters, metrics or scenarios specifically requested by you. If so, prior to the time of your commitment to purchase, you should request updated information based on any parameters, metrics or scenarios specifically required by you. Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented in this free writing prospectus, although that information may be based in part on loan level data provided by the issuer or its affiliates.
(viii) Each Underwriter severally agrees to retain all Free Writing Prospectuses that it has used and that are not filed pursuant to this Section 4 for a period of three years following the initial bona fide offering of the Registered Certificates.
(c) The following terms shall have the meanings set forth below, unless the context clearly indicates otherwise:
Appears in 3 contracts
Samples: Underwriting Agreement (Citigroup Mortgage Loan Trust 2007-Amc2), Underwriting Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe3), Underwriting Agreement (Citigroup Mortgage Loan Trust 2007-Amc3)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwritercovenants, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.Company and AHFC that:
(fa) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (activity, within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended (the “FSMA) ”), received by it in connection with the issue or sale of any Certificates Underwritten Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.Trust or the depositor; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Underwritten Notes in, from or otherwise involving the United Kingdom; and
(hb) Each Underwriterin relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, severally a “Relevant Member State”), with effect from and not jointly, represents, warrants and agrees including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates an offer of Underwritten Notes to any retail investor the public in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the followingthat Relevant Member State other than: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not to any legal entity which is a qualified investor as defined in the Prospectus Directive; (ii) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the relevant Underwriter or Underwriters nominated by the Trust for any such offer; or (iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of Underwritten Notes shall require the Trust, the depositor or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For purposes of Section 4(b) of this Agreement, (i) the expression an “offer of Underwritten Notes to the public” in relation to any notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Underwritten Notes to be offered so as to enable an investor to decide to purchase or subscribe the Underwritten Notes, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, and (ii) the expression “Prospectus Directive” means Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Actincluding by Directive 2010/73/EU), and (b) will not participate includes any relevant implementing measure in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivableseach Relevant Member State.
Appears in 3 contracts
Samples: Underwriting Agreement (Honda Auto Receivables 2017-2 Owner Trust), Underwriting Agreement (Honda Auto Receivables 2017-1 Owner Trust), Underwriting Agreement (Honda Auto Receivables 2016-4 Owner Trust)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor Transferors (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the TransferorTransferors; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the TransferorTransferors) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor Transferors expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferors to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the TransferorTransferors.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor Transferors except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each With respect to each Member State of the European Economic Area which has implemented the Prospectus Derivative (each a “Relevant Member State”), each Underwriter, severally and not jointly, represents, warrants and agrees that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any an offer of Certificates to the public in that Relevant Member State except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates to the public in that Relevant Member State (i) at any retail investor time to any legal entity which is a “qualified investor” as defined in the EEAProspectus Directive; (ii) at any time to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of Directive 2010/73/EU, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive); or (iii) at any time in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of Certificates shall require the Trust or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, (A) the expression “retail investoroffer any Certificates to the public” in relation to any Certificates in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe the Certificates, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, (B) the expression “Prospectus Directive” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended)and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in the Relevant Member State, (C) the expression “2010 PD Amending Directive” means Directive 2010/73/EU, and (D) the countries comprising the “European Economic Area” are Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
(i) Each Underwriter, severally and not jointly, covenants with the Bank Banks and the Transferor Transferors that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the a Bank or the a Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the a Bank or the a Transferor or refer such Rating Agency to the TransferorTransferors, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 3 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iv LLC), Underwriting Agreement (American Express Receivables Financing Corp Iv LLC), Underwriting Agreement (American Express Receivables Financing Corp Iv LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Underwritten Certificates for sale to the public public, including, without limitation, in and from the State of New York, as set forth in the Preliminary ProspectusProspectus Supplement. It is further understood that the Company, in reliance upon an exemption from the Attorney General of the State of New York to be granted pursuant to Policy Statement 104 and 105, has not and will not file the offering pursuant to Section 352-e of the General Business Law of the State of New York with respect to the Underwritten Certificates.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Each Underwriter may prepare and convey provide to one prospective investors certain Computational Materials, ABS Term Sheets, Structural Term Sheets or more of Collateral Term Sheets in connection with its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status offering of the subscriptionsCertificates, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior subject to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees thatfollowing conditions:
(i) each Such Underwriter Free Writing Prospectus prepared by it will not, as shall comply with the requirements of the date such Underwriter Free Writing Prospectus was conveyed or delivered no-action letter, dated May 20, 1994, issued by the Commission to any prospective purchaser Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co. Xxxxxporated and Kidder Structured Asset Xxxxxxatxxx, xx made applicable to other issuxxx and underwriters by the Commission in response to the request of Certificatesthe Public Securities Association, include any untrue statement dated May 27, 1994 (collectively, the "Kidder/PSA Letter"), and the requirements of material fact or omit any material fact necessary the no-action letter, daxxx February 17, 1995, issued by the Commission to make the statements contained thereinPublic Securities Association (the "PSA Letter" and, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary ProspectusKidder/PSA Letter, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and"No-Action Letters").
(ii) each Underwriter Free Writing Prospectus prepared by it Xxx xxrposes hereof, "Computational Materials" shall contain a legend substantially have the meaning given such term in the form No-Action Letters, but shall include only (x) the Computational Materials attached hereto as Exhibit A and (y) such other Computational Materials that have been prepared or delivered to prospective investors by or at the direction of such Underwriter. For purposes hereof, "ABS Term Sheets," "Structural Term Sheets" and "Collateral Term Sheets" shall have the meanings given such terms in compliance with the Rules and Regulations of PSA Letter but shall include only (x) the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting Term Sheets attached hereto as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United KingdomExhibit B, and (iiy) has only communicated those other ABS Term Sheets, Structural Term Sheets or caused Collateral Term Sheets that have been prepared for or delivered to be communicated and will only communicate prospective investors by or cause to be communicated an invitation or inducement to engage in investment activity (within at the meaning direction of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each such Underwriter. As used herein, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” "Term Sheets" means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the CertificatesABS Term Sheets, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesStructural Term Sheets and/or Collateral Term Sheets.
Appears in 3 contracts
Samples: Underwriting Agreement (Wachovia Commercial Mort Pass Thru Cert Ser 2002 C1), Underwriting Agreement (Wachovia Commercial Mort Pass Thru Cert Ser 2002-C2), Underwriting Agreement (Wachovia Comm Mort Sec Inc Com Mort Pasthr Certs Ser 2003 C5)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Class A Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Class A Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Class A Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Class A Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Class A Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Class A Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Class A Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Class A Certificates, transfer, deposit or otherwise convey any Class A Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Class A Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Class A Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, the Preliminary Prospectus or any other offering material relating to the Class A Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000Act 2000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the TrustTrust or the Transferor.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the United Kingdom. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “EUWA”); (ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended) as it forms part of domestic law by virtue of the EUWA, and the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe for the Certificates.
(i) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the European Economic Area (the “EEA”). For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended)the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II II; or (iii) not a qualified investor as defined in Directive 2003/71/EC Regulation (EU) 2017/1129 (as amended), and the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe for the Certificates.
(ij) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Class A Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Class A Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Class A Certificates, including information about the characteristics and performance of the Receivables.
Appears in 3 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Class A Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor Transferors (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Class A Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the TransferorTransferors; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Class A Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Class A Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the TransferorTransferors) it will deliver the Preliminary Prospectus to each investor to whom it sells Class A Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Class A Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor Transferors expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferors to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Class A Certificates, transfer, deposit or otherwise convey any Class A Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Class A Certificates without the prior written consent of the TransferorTransferors.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Class A Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Class A Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor Transferors except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000Act 2000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank Banks and the Transferor Transferors that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Class A Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the a Bank or the a Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 3 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iv LLC), Underwriting Agreement (American Express Receivables Financing Corp Iv LLC), Underwriting Agreement (American Express Receivables Financing Corp Iv LLC)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Offered Securities for sale to the public as set forth in the Preliminary ProspectusProspectus and that no Underwriter will offer, sell or otherwise distribute the Offered Securities (except for the sale thereof in exempt transactions) in any state in which the Offered Securities are not exempt from registration under “blue sky” or state securities laws (except where the Offered Securities will have been qualified for offering and sale at such Underwriter’s direction under such “blue sky” or state securities laws).
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus It is understood that each Underwriter may prepare and (iv) any materials included in one or more provide to prospective investors certain “road showsComputational Materials” and “ABS Term Sheets” (as defined in Rule 433(hSection 3(b) under (vii) below) in connection with the Act) relating offering of the Offered Securities, subject to the Certificates authorized or approved following conditions:
(i) All Computational Materials and ABS Term Sheets provided by the Transferor (an Underwriter to prospective investors that are required to be filed pursuant to the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communicationSEC No-Action Letters” (as defined in Rule 405 under Section 3(b) (vii) below) shall bear a legend on each page including the Act) that constitutes an offer to sell or solicitation following statement: “THE INFORMATION CONTAINED HEREIN HAS BEEN PROVIDED BY [UNDERWRITER]. NEITHER THE ISSUER OF THE SECURITIES NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION HEREIN. THE INFORMATION HEREIN IS PRELIMINARY, AND WILL BE SUPERSEDED BY THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.” In the case of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” Collateral Term Sheets (as defined in Item 1101(athe SEC No-Action Letters), such legend shall also include the following statement: “THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE DESCRIPTION OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS SUPPLEMENT RELATING TO THE SECURITIES AND SUPERSEDES ALL INFORMATION CONTAINED IN ANY COLLATERAL TERM SHEETS RELATING TO THE MORTGAGE POOL PREVIOUSLY PROVIDED BY [UNDERWRITER].” Notwithstanding the foregoing, this subsection (i) of Regulation AB under will be satisfied if all Computational Materials and ABS Term Sheets referred to therein bear a legend in the Act unless such Underwriter has obtained form attached hereto as Schedule III.
(ii) Any Computational Materials and ABS Term Sheets are subject to the prior written review by and approval of the TransferorCompany prior to their distribution to any prospective investors and a copy of such Computational Materials and ABS Term Sheets as are delivered to prospective investors shall, in addition to the foregoing delivery requirements, be delivered to the Company simultaneously with delivery to prospective investors.
(iii) Each Underwriter shall provide to the Company, for filing on Form 8-K as provided in Section 5(p), copies (in such format as required by the Company) of all Computational Materials and ABS Term Sheets prepared by it that are required to be filed with the Commission pursuant to the SEC No-Action Letters. An Underwriter may provide copies of the foregoing in a consolidated or aggregate form that includes all information required to be filed. All Computational Materials and ABS Term Sheets described in this Section 3(b)(iii) must be provided to the Company not later than 9:00 a.m. New York time one business day before filing thereof is required pursuant to the terms of the SEC No-Action Letters. Each Underwriter severally agrees that it will not provide to any investor or prospective investor in the Offered Securities any Computational Materials or ABS Term Sheets on or after the day on which Computational Materials and ABS Term Sheets are required to be provided to the Company pursuant to this Section 3(b) (other than copies of Computational Materials or ABS Term Sheets previously submitted to the Company in accordance with this Section 3(b) for filing pursuant to Section 5(p)), unless such Computational Materials or ABS Term Sheets are preceded or accompanied by the delivery of a Prospectus to such investor or prospective investor.
(iv) All information included in the Computational Materials and ABS Term Sheets shall be generated based on substantially the same methodology and assumptions that are used to generate the information in the Prospectus Supplement as set forth therein; provided, however, that (x) each Underwriter the Computational Materials and ABS Term Sheets may prepare and convey include information based on alternative methodologies or assumptions if specified therein. If any Computational Materials or ABS Term Sheets that are required to one or more of its potential investors one or more “written communications” be filed were based on assumptions with respect to the Mortgage Loans that are incorrect, that differ from the final Pool Information (as defined herein) in Rule 405 any material respect or include structuring terms that were revised in any material respect prior to the printing of the Prospectus, the Underwriter responsible therefor shall prepare revised Computational Materials or ABS Term Sheets, as the case may be, based on the final Pool Information and structuring assumptions, circulate such revised Computational Materials and ABS Term Sheets to all recipients of the preliminary versions thereof that indicated orally to such Underwriter they would purchase all or any portion of the Offered Securities, and include such revised Computational Materials and ABS Term Sheets (marked, “as revised”) in the materials delivered to the Company pursuant to Section 3(b)(iii).
(v) The Company shall not be obligated to file any Computational Materials or ABS Term Sheets that (A) in the reasonable determination of the Company and the respective Underwriter are not required to be filed pursuant to the SEC No-Action Letters or (B) have been determined to contain any material error or omission, provided that, at the request of the respective Underwriter, the Company will file Computational Materials or ABS Term Sheets that contain a material error or omission if clearly marked “superseded by materials dated [date]” and accompanied by corrected Computational Materials or ABS Term Sheets that are marked “material previously dated [date], as corrected”. In the event that at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act, any Computational Materials or ABS Term Sheets are determined, in the reasonable judgment of the Company or the respective Underwriter, to contain a material error or omission, such Underwriter shall prepare a corrected version of such Computational Materials or ABS Term Sheets, shall circulate such corrected version of such Computational Materials and ABS Term Sheets to all recipients of the prior versions thereof that either indicated orally to such Underwriter they would purchase all or any portion of the Offered Securities, or actually purchased all or any portion thereof, and shall deliver copies of such corrected Computational Materials and ABS Term Sheets (marked, “as corrected”) containing no more than to the following: Company for filing with the Commission in a subsequent Form 8-K submission (isubject to the Company’s obtaining an accountant’s comfort letter in respect of such corrected Computational Materials and ABS Term Sheets, which shall be at the expense of such Underwriter) information contemplated by Rule 134 under the Act and included or provided that if any such letter is required to be included revised solely because of a change in the Preliminary ProspectusPool Information, any additional expenses for such letter resulting from the Ratings Free Writing Prospectus or change in Pool Information shall be paid by the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of saleCompany.
(cvi) Each If an Underwriter severally does not provide any Computational Materials and not jointly represents and agrees (i) ABS Term Sheets to the Company pursuant to Section 3(b)(iii), such Underwriter shall be deemed to have represented, as of the Closing Time, that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to provide any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it investors with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it information in relation to any Certificates in, from written or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it electronic form in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) offering of the FSMA does not apply Offered Securities that is required to be filed with the TrustCommission in accordance with the SEC No-Action Letters, and such Underwriter shall provide the Company with a certification to that effect on the Closing Time.
(hvii) Each Underwriter, severally The following terms related to Computational Materials and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates ABS Term Sheets have the respective meanings assigned to any retail investor them in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.3(b)(vii):
Appears in 3 contracts
Samples: Underwriting Agreement (First NLC Securitization, Inc.), Underwriting Agreement (FBR Securitization, Inc.), Underwriting Agreement (First NLC Securitization, Inc.)
Offering by Underwriters. (a) It is understood that, that after the Effective Date, the Underwriters propose each Underwriter proposes to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Each Underwriter shall comply with all applicable laws and regulations in connection with its use of Free Writing Prospectuses, including but not limited to Rules 164 and 433 of the Act.
(c) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus Additional Information and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or other information approved by the Transferor (the “Permitted Additional Information”)Transferor, each Underwriter severally and not jointly represents, warrants and covenants agrees with the Transferor and the Bank that it has not prepared, made, used, prepared, authorized, approved, disseminated approved or referred to and will not prepare, make, use, prepare, authorize, approve, disseminate approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesNotes, including including, but not limited to to, any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained Act. Notwithstanding the prior written approval of foregoing, the Transferor; provided, however, Transferor agrees that (x) each Underwriter the Underwriters may prepare and convey disseminate information on Bloomberg to one or more of its potential prospective investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: relating solely to (i) information contemplated by of the type identified in Rule 134 under of the Act and included or to be Act, (ii) information included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (iiiii) columns or other entries showing the status of allocations and subscriptions of the subscriptionsNotes, the expected pricing parameters, parameters of the Notes and the yields and weighted average life or the trade date lives of the Certificates Notes, and (iv) information constituting final terms of the Notes within the meaning of Rule 433(d)(5)(ii) under the Act (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations ); provided that in the case of sale.
(c) Each Underwriter severally and not jointly represents and agrees the foregoing clauses (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and through (ii) thativ), during the period prior to the filing of other than the final pricing terms, such Underwriter Free Writing Prospectus (as notified would not be required to be filed with the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investorCommission.
(d) Each Underwriter severally and not jointly represents, warrants and agrees with the Transferor, the Issuer and the Bank that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificatesthe Notes, include any untrue statement of a material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that which was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate written information furnished to the related Underwriter by the Transferor Transferor, the Issuer or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferor, the Issuer or the Bank to the related Underwriter reasonably within a reasonable period of time prior to the time of first use of such Underwriter Free Writing Prospectus; and;
(ii) if required by Rule 433(c)(2)(i) of the Act, each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations Rule 433(c)(2)(i) of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act; and
(iii) each Underwriter Free Writing Prospectus prepared by it shall be delivered to the Transferor no later than the date of first use and, unless otherwise agreed to by the Transferor and the related Underwriter, such delivery shall occur no later than the close of business for the Bank (Central Time) on the date of first use; provided, however, if the date of first use is not a Business Day, such delivery shall occur no later than the close of business for the Bank (Central Time) on the first Business Day after such date of first use.
(e) Each Underwriter, severally and not jointly, represents, warrants Underwriter represents and agrees (i) that it will notdid not enter into any Contract of Sale for any Notes prior to the Time of Sale and (ii) that it will, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesNotes, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without deliver the Preliminary Prospectus to each investor to whom Notes are sold by it during the period prior written consent to the filing of the Transferorfinal Prospectus (as notified to such Underwriter by the Transferor or by the Bank), which delivery shall be prior to the applicable time of any such Contract of Sale with respect to such investor.
(f) Each UnderwriterIn the event the Bank, severally and not jointlythe Transferor or any Underwriter becomes aware that, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any as of the Certificates Time of Sale, any Time of Sale Information contains or distribute contained any untrue statement of material fact or omits or omitted to state any material fact necessary in order to make the Prospectus, statements contained therein in light of the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except circumstances under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and beliefwhich they were made, not impose any obligations on the Transferor except as set forth herein.
misleading (g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMADefective Information”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each such Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates Transferor, as applicable, shall promptly notify the Representatives and, in the case of any Underwriter giving such communication; providednotice, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond of such untrue statement or omission no later than one Business Day after discovery and the Transferor shall prepare and deliver to the oral communicationUnderwriters a Corrected Prospectus. “Rating Each Underwriter shall deliver such Corrected Prospectus to any person with whom a Contract of Sale was entered into based on such Defective Information” means , and such Underwriter shall provide any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics such person with adequate disclosure of the Receivables person’s rights under the existing Contract of Sale and a meaningful ability to elect to terminate or not terminate the legal structure prior Contract of the Certificates, Sale and to elect to enter into or (b) undertaking credit rating surveillance not enter into a new Contract of Sale based on the Certificates, including information about set forth in the characteristics and performance of the ReceivablesCorrected Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (First National Master Note Trust), Underwriting Agreement (First National Master Note Trust)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Prospectus, the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”)Fees Free Writing Prospectus, each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants represents and agrees that it has, (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”)) received by it it, in connection with the issue or sale of any Certificates the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer or the Transferor, and (ii) complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.
(h) Each UnderwriterIn relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each a “Relevant Member State”), severally and not jointly, represents, warrants each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates an offer of notes which are the subject of the offering contemplated by the Prospectus to the public in that Relevant Member State other than: (i) to any retail investor legal entity which is a “qualified investor” as defined in the EEAProspectus Directive; (ii) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), subject to obtaining the prior consent of the relevant underwriter or underwriters nominated by the Issuer for any such offer or if no such underwriter has been nominated the prior consent of the Issuer; or (iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of notes shall require the Issuer, the Transferor or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression an “retail investoroffer of Notes to the public” in relation to any Notes in any Relevant Member State means a person who is one (or more) the communication in any form and by any means of sufficient information on the terms of the following: (i) a retail client offer and the Notes to be offered so as defined to enable an investor to decide to purchase or subscribe the Notes, as the same may be varied in point (11) of Article 4(1) of that Relevant Member State by any measure implementing the Prospectus Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where in that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Relevant Member State. The expression ‘‘Prospectus Directive’’ means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU), and includes any relevant implementing measure in the Relevant Member State.
(i) Each Underwriter, severally and but not jointly, covenants with the Bank represents and the Transferor that on or prior to the Closing Dateagrees that, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) it has not delivered, and will not deliver without the prior written consent of the Transferor or the Bank, any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or the Bank, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Transferor or the Bank or refer such Hired NRSRO or other nationally recognized statistical rating organization to the Transferor or refer such Rating Agency to the TransferorBank, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the CertificatesUnderwritten Notes, including information about the characteristics of the Receivables and the legal structure of the CertificatesUnderwritten Notes, or and (b) undertaking credit rating surveillance on the CertificatesUnderwritten Notes, including information about the characteristics and performance of the Receivables, in each case as contemplated by Rule 17g5(a)(3)(iii)(C).
Appears in 2 contracts
Samples: Underwriting Agreement (Barclays Dryrock Issuance Trust), Underwriting Agreement (Barclays Dryrock Funding LLC)
Offering by Underwriters. (a) It is understood that, that after the ------------------------ Effective Date, Date the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) Each Underwriter may provide to prospective investors the Preliminary Prospectus1997-1 Term Sheet dated January 23, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) 1997 relating to the Certificates authorized or approved (the "1997-1 Term Sheet") prepared by the Transferor (the “Permitted Additional Information”)Bank and attached hereto as Exhibit A, each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior ----------------- subject to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees thatfollowing conditions:
(i) each Such Underwriter Free Writing Prospectus prepared shall have complied with the requirements of the no-action letter, dated May 20, 1994, issued by it will notthe Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset Corporation, as made applicable to other issuers and underwriters by the Commission in the response to the request of the date such Underwriter Free Writing Prospectus was conveyed or delivered Public Securities Association, dated May 24, 1994 (collectively, the "Xxxxxx/PSA ---------- Letter"), the requirements of the no-action letter, dated February 17, 1995, ------ issued by the Commission to any prospective purchaser the Public Securities Association (the "PSA Letter") ---------- and the requirements of Certificatesthe no-action letter, include any untrue statement of material fact or omit any material fact necessary dated April 5, 1996, issued by the Commission to make Greenwood Trust Company (the statements contained therein, when read "Greenwood Letter" and together with the Preliminary ProspectusXxxxxx/PSA Letter and the PSA Letter, in light of ----------------- the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and"No-Action Letters"). -----------------
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally severally, represents and warrants to the Bank that (a) it has not jointly, represents, warrants and agrees will not use any information that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) constitutes "Computational Materials" with respect to the Certificates, transfer, deposit or otherwise convey any offering of the Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without unless it has obtained the prior written consent of the Transferor.
Bank to such usage and (fb) Each Underwriterother than the 1997-1 Term Sheet, severally and not jointly, represents, warrants and agrees that it has not and will not, directly not use any information that constitutes "Series Term Sheets," "ABS Term Sheets," "Structural Term Sheets," or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act "Collateral Term Sheets" with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure offering of the Certificates. For purposes hereof, or (b) undertaking credit rating surveillance on "Series Term Sheet" shall ----------------- have the Certificatesmeaning given such term in the Greenwood Letter and "Computational ------------- Materials" shall have the meaning given such term in the No-Action Letters. For --------- purposes hereof, including information about "ABS Term Sheets," "Structural Term Sheets" and "Collateral --------------- ---------------------- ---------- Term Sheets" shall have the characteristics and performance of meanings given such terms in the Receivables.PSA Letter. -----------
Appears in 2 contracts
Samples: Underwriting Agreement (First Usa Inc), Underwriting Agreement (First Usa Credit Card Master Trust)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Class A Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Class A Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Class A Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Class A Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Class A Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Class A Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Class A Certificates, transfer, deposit or otherwise convey any Class A Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Class A Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Class A Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Class A Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000Act 2000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Class A Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 2 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwritercovenants, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.Company and AHFC that:
(fa) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (activity, within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended (the “FSMA) ”), received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.Trust or the depositor; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom; and
(hb) Each Underwriterin relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, severally a “Relevant Member State”), with effect from and not jointly, represents, warrants and agrees including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates an offer of Notes to any retail investor the public in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the followingthat Relevant Member State other than: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not to any legal entity which is a qualified investor as defined in the Prospectus Directive; (ii) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the relevant Underwriter or Underwriters nominated by the Trust for any such offer; or (iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of Notes shall require the Trust, the depositor or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For purposes of Section 4(b) of this Agreement, (i) the expression an “offer of Notes to the public” in relation to any notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe the Notes, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, and (ii) the expression “Prospectus Directive” means Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Actincluding by Directive 2010/73/EU), and (b) will not participate includes any relevant implementing measure in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivableseach Relevant Member State.
Appears in 2 contracts
Samples: Underwriting Agreement (Honda Auto Receivables 2016-2 Owner Trust), Underwriting Agreement (Honda Auto Receivables 2016-1 Owner Trust)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, represents and warrants to and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of with the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.Apollo Parties that:
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000 (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Securities, in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.Issuer;
(hii) Each Underwriterit has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, severally from or otherwise involving, the United Kingdom; and
(iii) in relation to each Member State of the European Economic Area, which has implemented the Prospectus Directive (each, a “Relevant Member State”), with effect from and not jointly, represents, warrants and agrees including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not offered, sold or otherwise made available and will not offermake an offer to the public of any Securities which are the subject of the offering contemplated by this Agreement in that Relevant Member State, sell or otherwise except that it may make available an offer to the public in that Relevant Member State of any Certificates Securities at any time under the following exemptions under the Prospectus Directive, if they have been implemented in that Relevant Member State:
(A) to any retail investor legal entities which are qualified investors as defined in the EEAProspectus Directive;
(B) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior written consent of the Representatives for any such offer; or
(C) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of Securities shall result in a requirement for the publication by the Issuer or any Underwriter of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “retail investoroffer to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase any Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(iand any amendments thereto, including the 2010 PD Amending Directive) Each Underwriter, severally and not jointly, covenants with the Bank includes any relevant implementing measure in each Relevant Member State and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an expression “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information2010 Amending Directive” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesDirective 2010/73/EU.
Appears in 2 contracts
Samples: Underwriting Agreement (Apollo Global Management LLC), Underwriting Agreement (Apollo Global Management LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Class A Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor Transferors (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Class A Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the TransferorTransferors; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Class A Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Class A Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the TransferorTransferors) it will deliver the Preliminary Prospectus to each investor to whom it sells Class A Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Class A Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor Transferors expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferors to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Class A Certificates, transfer, deposit or otherwise convey any Class A Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Class A Certificates without the prior written consent of the TransferorTransferors.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Class A Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Class A Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor Transferors except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000Act 2000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each With respect to each Member State of the European Economic Area which has implemented the Prospectus Derivative (each a “Relevant Member State”), each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any an offer of Certificates to the public in that Relevant Member State except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates to the public in that Relevant Member State (i) at any retail investor time to any legal entity which is a “qualified investor” as defined in the EEAProspectus Directive; (ii) at any time to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of Directive 2010/73/EU, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive); or (iii) at any time in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of Certificates shall require the Trust or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, (A) the expression “retail investoroffer any Certificates to the public” in relation to any Certificates in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe the Certificates, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, (B) the expression “Prospectus Directive” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended)and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in the Relevant Member State, (C) the expression “2010 PD Amending Directive” means Directive 2010/73/EU, and (D) the countries comprising the “European Economic Area” are Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
(i) Each Underwriter, severally and not jointly, covenants with the Bank Banks and the Transferor Transferors that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Class A Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the a Bank or the a Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the a Bank or the a Transferor or refer such Rating Agency to the TransferorTransferors, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 2 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iv LLC), Underwriting Agreement (American Express Receivables Financing Corp Iv LLC)
Offering by Underwriters. (a) It is understood that, after The terms of the Effective Date, offering of the Shares in the United States by the Underwriters propose to offer the Certificates for sale to the public shall be as set forth in the Preliminary Prospectus. The Underwriters may from time to time change the public offering price after the closing of the offering and increase or decrease the concessions and discounts to dealers as they may determine.
(b) Other than You, on behalf of the Underwriters, represent and warrant that (i) the information set forth in the last paragraph of text on the front cover page of the Prospectus, the stabilization legend on the inside front cover page of the Prospectus and the section of the Prospectus entitled "Underwriting" (except for paragraphs four and seven thereof) in the Registration Statement, any Preliminary Prospectus and the Prospectus relating to the Shares (insofar as such information relates to the Underwriters) constitutes the only information furnished by the Underwriters to the Company for inclusion in the Registration Statement, any Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing and that the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) statements made therein are correct and (y) each Underwriter will be permitted do not omit to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit state any material fact required to be stated therein or necessary to make the statements contained therein, when read together with the Preliminary Prospectus, made therein in light of the circumstances under which they were made, made not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement and (ii) the Underwriters have not distributed and will not distribute prior to the extent such misstatements Closing Date or omissions were on any Option Closing Date, as the result case may be, any of any inaccurate information that was included offering material in connection with the offering and sale of the shares other than the Preliminary Prospectus, the Ratings Free Writing Prospectus or Prospectus, the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the ActRegistration Statement, and shall otherwise conform to any requirements for “free writing prospectuses” under other materials permitted by the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 2 contracts
Samples: Underwriting Agreement (Cell Therapeutics Inc), Underwriting Agreement (Cell Therapeutics Inc)
Offering by Underwriters. (a) It is understood that, after Upon the Effective Dateauthorization by the Representatives of the release of the Notes, the several Underwriters propose to offer the Certificates Notes for sale to upon the public as terms and conditions set forth in this Agreement and the Preliminary Prospectus.
(ba) Other than Each Underwriter, severally and not jointly, represents, warrants, covenants and agrees with the Trust and Verizon Wireless that:
(i) other than the Preliminary Prospectus and the Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, prepared, authorized, approved, disseminated approved or referred to and will not prepare, make, use, authorize, approve, disseminate approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesNotes, including including, but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Securities Act unless such Underwriter has obtained the prior written approval of Verizon Wireless and the TransferorDepositor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors without the consent of Verizon Wireless, the Depositor or any of their respective affiliates one or more “written communications” (as defined in Rule 405 under the Securities Act) containing no more in the form of (a) information included in the Time of Sale Information, to the extent it has already been filed with the Commission in the Preliminary Prospectus or the Ratings Free Writing Prospectus, (b) information customarily included in confirmations of sales of securities and notices of allocations, (c) certain Intex.cdi files relating to the Receivables that does not contain any Issuer Information (as defined below) other than Issuer Information included in the following: Preliminary Prospectus previously filed with the Commission, (id) information contemplated by Rule 134 under the Act and included or to be included in Securities Act, (e) the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, Bloomberg Screen or (iif) columns preliminary pricing information or other entries showing the information regarding status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates subscriptions that does not contain any Issuer Information (each such communicationother written communication enumerated in this Section 4(a)(i), an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus). As used herein, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for term “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Issuer Information” means any oral or written information provided of the type specified in clauses (1) – (5) of footnote 271 of Commission Release No. 33-8591 (Securities Offering Reform), other than Underwriter Derived Information. As used herein, the term “Underwriter Derived Information” shall refer to a Rating Agency for information of the purpose type described in clause (5) of footnote 271 of Commission Release No. 33-8591 (aSecurities Offering Reform) determining the initial credit rating for the Certificateswhen prepared by any Underwriter, including information about traditional computational and analytical materials prepared by the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.Underwriter;
Appears in 2 contracts
Samples: Underwriting Agreement (Verizon Master Trust), Underwriting Agreement (Verizon Master Trust)
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Underwritten Certificates for sale to the public public, including, without limitation, in and from the State of New York, as set forth in the Preliminary ProspectusProspectus Supplement. It is further understood that the Company, in reliance upon an exemption from the Attorney General of the State of New York to be granted pursuant to Policy Statement 104 and 105, has not and will not file the offering pursuant to Section 352-e of the General Business Law of the State of New York with respect to the Underwritten Certificates.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Each Underwriter may prepare and convey provide to one prospective investors certain Computational Materials, ABS Term Sheets, Structural Term Sheets or more of Collateral Term Sheets in connection with its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status offering of the subscriptionsCertificates, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior subject to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees thatfollowing conditions:
(i) each Such Underwriter Free Writing Prospectus prepared by it will not, as shall comply with the requirements of the date such Underwriter Free Writing Prospectus was conveyed or delivered no-action letter, dated May 20, 1994, issued by the Commission to any prospective purchaser Kidder, Peabody Acceptance Coxxxxxxion I, Kidder, Peabody & Co. Incorporated xxx Xxxxxr Structured Asset Corporation, xx xade applicable to other issuers and underwriters by the Commission in response to the request of Certificatesthe Public Securities Association, include any untrue statement dated May 27, 1994 (collectively, the "Kidder/PSA Letter"), and the requirxxxxxx of material fact or omit any material fact necessary the no-action letter, dated February 17, 1995, issued by the Commission to make the statements contained thereinPublic Securities Association (the "PSA Letter" and, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary ProspectusKidder/PSA Letter, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and"No-Acxxxx Xetters").
(ii) each Underwriter Free Writing Prospectus prepared by it For purposes hereof, "Computational Materials" shall contain a legend substantially have the meaning given such term in the form No-Action Letters, but shall include only (x) the Computational Materials attached hereto as Exhibit A and (y) such other Computational Materials that have been delivered to prospective investors by or at the direction of such Underwriter. For purposes hereof, "ABS Term Sheets," "Structural Term Sheets" and "Collateral Term Sheets" shall have the meanings given such terms in compliance with the Rules and Regulations of PSA Letter but shall include only (x) the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting Term Sheets attached hereto as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United KingdomExhibit B, and (iiy) has only communicated those other ABS Term Sheets, Structural Term Sheets or caused Collateral Term Sheets that have been prepared for and delivered to be communicated and will only communicate prospective investors by or cause to be communicated an invitation or inducement to engage in investment activity (within at the meaning direction of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each such Underwriter. As used herein, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” "Term Sheets" means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the CertificatesABS Term Sheets, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesStructural Term Sheets and/or Collateral Term Sheets.
Appears in 2 contracts
Samples: Underwriting Agreement (Wachovia Commercial Mort Sec Inc Com Mor Ps THR Cer Se 03-C8), Underwriting Agreement (Wachovia Comm Mort Sec Inc Pass THR Certs Ser 2003-C9)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Class A Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Class A Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Class A Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Class A Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Class A Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Class A Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Class A Certificates, transfer, deposit or otherwise convey any Class A Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Class A Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Class A Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, the Preliminary Prospectus or any other offering material relating to the Class A Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the TrustTrust or the Transferor.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the United Kingdom. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “EUWA”); (ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended) as it forms part of domestic law by virtue of the EUWA, and the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe for the Certificates.
(i) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the European Economic Area (the “EEA”). For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended)the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II II; or (iii) not a qualified investor as defined in Directive 2003/71/EC Regulation (EU) 2017/1129 (as amended), and the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe for the Certificates.
(ij) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Class A Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Class A Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Class A Certificates, including information about the characteristics and performance of the Receivables.
Appears in 2 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC), Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Prospectus, the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”)Fees Free Writing Prospectus, each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has, (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer, and (ii) complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom.
(h) Each With respect to each Member State of the European Economic Area which has implemented Directive 2003/71/EC (and amendments thereto, including Directive 2010/73/EU, to the extent implemented by the relevant Member State of the European Economic Area, and any relevant implementing measure in the relevant Member State of the European Economic Area (the “Prospectus Directive”)) (each a “Relevant Member State”), each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not offered, sold or otherwise made available and will not offermake an offer of notes which are the subject of the offering contemplated by the Prospectus to the public in that Relevant Member State except that it may, sell or otherwise with effect from and including the Relevant Implementation Date, make available an offer of notes which are the subject of the offering contemplated by the Prospectus to the public in that Relevant Member State: (i) at any Certificates time to any retail investor legal entity which is a “qualified investor” as defined in the EEAProspectus Directive; (ii) at any time to fewer than 150 or, if the Relevant Member State has implemented the relevant provision of Directive 2010/73/EU, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive); or (iii) at any time in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of notes shall require the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression “retail investoroffer any notes to the public” in relation to any notes in any Relevant Member State means a person who is one (or more) the communication in any form and by any means of sufficient information on the terms of the following: (i) a retail client offer and the notes to be offered so as defined to enable an investor to decide to purchase or subscribe the notes, as the same may be varied in point (11) of Article 4(1) of that Relevant Member State by any measure implementing the Prospectus Directive 2014/65/EU (as amendedin that Relevant Member State. The countries comprising the ‘‘European Economic Area’’ are Austria, “MiFID II”); (ii) a customer within Belgium, Bulgaria, Croatia, Cyprus, the meaning of Directive 2002/92/EC (as amended)Czech Republic, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended)Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
(i) Each Underwriter, severally and but not jointly, covenants with the Bank represents and the Transferor that on or prior to the Closing Dateagrees that, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) it has not delivered, and will not deliver without the prior written consent of the Transferor or BBD, any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or BBD, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Bank Transferor or BBD or refer such Hired NRSRO or other nationally recognized statistical rating organization to the Transferor or refer such Rating Agency to the TransferorBBD, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the CertificatesUnderwritten Notes, including information about the characteristics of the Receivables and the legal structure of the CertificatesUnderwritten Notes, or and (b) undertaking credit rating surveillance on the CertificatesUnderwritten Notes, including information about the characteristics and performance of the Receivables, in each case as contemplated by Rule 17g5(a)(3)(iii)(C).
Appears in 2 contracts
Samples: Underwriting Agreement (Barclays Dryrock Funding LLC), Underwriting Agreement (Barclays Bank Delaware)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor Transferors (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the TransferorTransferors; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the TransferorTransferors) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor Transferors expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferors to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the TransferorTransferors.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor Transferors except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each With respect to each Member State of the European Economic Area which has implemented the Prospectus Derivative (each a “Relevant Member State”), each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any an offer of Certificates to the public in that Relevant Member State except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates to the public in that Relevant Member State (i) at any retail investor time to any legal entity which is a “qualified investor” as defined in the EEAProspectus Directive; (ii) at any time to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of Directive 2010/73/EU, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive); or (iii) at any time in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of Certificates shall require the Trust or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, (A) the expression “retail investoroffer any Certificates to the public” in relation to any Certificates in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe the Certificates, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, (B) the expression “Prospectus Directive” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended)and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in the Relevant Member State, (C) the expression “2010 PD Amending Directive” means Directive 2010/73/EU, and (D) the countries comprising the “European Economic Area” are Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
(i) Each Underwriter, severally and not jointly, covenants with the Bank Banks and the Transferor Transferors that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the a Bank or the a Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the a Bank or the a Transferor or refer such Rating Agency to the TransferorTransferors, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 2 contracts
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iv LLC), Underwriting Agreement (American Express Credit Account Master Trust)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Securities for sale to the public as set forth in the Preliminary Registration Statement, the Time of Sale Information and the Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as is a qualified investor (within the meaning of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(1186(7) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the U.K. Financial Services and Markets Xxx 0000, as amended Act 2000) (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and ;
(ii) it has not offered or sold and, will not offer or sell any Securities to persons in the United Kingdom except to persons who are qualified investors or otherwise in circumstances which do not require a prospectus to be made available to the public in the United Kingdom within the meaning of section 85(1) of the FSMA;
(iii) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.Company;
(hiv) Each Underwriterit has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, severally and not jointlyfrom or otherwise involving the United Kingdom;
(v) in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, representsa “Relevant Member State”), warrants each underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of notes to the public in that Relevant Member State prior to the publication of a prospectus in relation to the notes that has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of notes to the public in that Relevant Member State (provided that the notes have not been and will not be offered, sold or otherwise made available delivered in Italy or to investors resident in Italy) at any time:
(A) in (or in Germany, where the offer starts within) the period beginning on the date of publication of a prospectus in relation to those notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and will notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive and ending on the date which is 12 months after the date of such publication;
(B) to legal entities which are authorized or regulated to operate in the financial markets or, if not offerso authorized or regulated, sell or otherwise make available any Certificates whose corporate purpose is solely to invest in securities;
(C) to any retail investor legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more the €50,000,000 as shown in its last annual or consolidated accounts; or
(D) in any other circumstances which do not require the EEApublication by the Issuer of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provisionthe foregoing, the expression an “retail investoroffer of notes to the public” in relation to any notes in any Relevant Member State means a person who is one (or more) the communication in any form and by any means of sufficient information on the terms of the following: (i) a retail client offer and the notes to be offered so as defined to enable an investor to decide to purchase or subscribe the notes, as the same may be varied in point (11) of Article 4(1) of that Member State by any measure implementing the Prospectus Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within in that Member State and the meaning of expression Prospectus Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in means Directive 2003/71/EC (as amended)and includes any relevant implementing measure in each Relevant Member State.
(ivi) Each Underwriterit has not and will not use, severally and not jointlyauthorize use of, covenants with refer to, create, or participate in the Bank and the Transferor that on or prior to the Closing Dateplanning for use of, and thereafterany “free writing prospectus”, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) Rule 405 under the Securities Act (which term includes use of the Act with respect any written information furnished to the Certificates, it (a) will Commission by the Company and not deliver incorporated by reference into the Registration Statement and any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within press release issued by the meaning of the Exchange ActCompany), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agencyit may create, such Underwriter is authorized to inform such Rating Agency that it will respond to use, authorize use of, refer to, or participate in the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency planning for the purpose use of (a1) determining a free writing prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the initial credit rating for Securities Act) that was not included (including through incorporation by reference) in the CertificatesBase Prospectus, including information about a Preliminary Prospectus Supplement or a previously filed Issuer Free Writing Prospectus, (2) any Issuer Free Writing Prospectus listed in Annex I or prepared pursuant to Section 1(e) and 5(c) hereof, (3) any free writing prospectus distributed to potential investors via Bloomberg summarizing the characteristics terms of the Receivables Securities and the legal structure offering contemplated hereby (provided that no such free writing prospectus shall conflict with any Time of the CertificatesSale Information that has not be superseded or modified), or (b4) undertaking credit rating surveillance on any free writing prospectus prepared by the CertificatesUnderwriters and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (vi)(1), including information about (3) or (4), an “Underwriter Free Writing Prospectus”);
(vii) it has not and will not distribute any Underwriter Free Writing Prospectus referred to in clause (vi)(1) in a manner reasonably designed to lead to its broad unrestricted dissemination;
(viii) it has not and will not, without the characteristics and performance prior written consent of the ReceivablesCompany, use any free writing prospectus that contains the final terms of the Securities unless such terms have previously been or will be included in a free writing prospectus filed with the Commission; provided, however, that the Underwriters may use a term sheet substantially in the form of Annex II hereto without the consent of the Company; provided further, that the Underwriters using such term sheet shall notify the Company, and provide a copy of such term sheet to the Company, prior to the first use of such term sheet;
(ix) it will, pursuant to reasonable procedures developed in good faith, retain, as and to the extent required under Rule 433 under the Securities Act, copies of each free writing prospectus used or referred to by it, in accordance with Rule 433 under the Securities Act; and
(x) it is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period).
Appears in 1 contract
Samples: Underwriting Agreement (Hanson PLC)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Offered Securities for sale to the public as set forth in the Preliminary ProspectusProspectus and that no Underwriter will offer, sell or otherwise distribute the Offered Securities (except for the sale thereof in exempt transactions) in any state in which the Offered Securities are not exempt from registration under "blue sky" or state securities laws (except where the Offered Securities will have been qualified for offering and sale at such Underwriter's direction under such "blue sky" or state securities laws).
(b) Other than In connection with the offering of the Offered Securities, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses (as defined below), or portions thereof, which the Company is required to file with the Commission in electronic format and will use reasonable efforts to provide to the Company such Free Writing Prospectuses, or portions thereof, in either Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except to the extent that the Company, in its sole discretion, waives such requirements, subject to the following conditions (to which such conditions each Underwriter agrees (provided that no Underwriter is responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Preliminary Prospectus, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Offered Securities, unless such written communication (ii1) is made in reliance on Rule 134 of the Ratings Securities Act Regulations, (2) constitutes a prospectus satisfying the requirements of Rule 430B of the Securities Act Regulations or (3) constitutes a Free Writing Prospectus, (iii) the Prospectus and (iv) such Free Writing Prospectus is attached to this Agreement as Schedule III. The Underwriter shall not convey or deliver in connection with the initial offering of the Offered Securities any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “"ABS informational and computational materials” material," as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; providedSecurities Act Regulations ("ABS INFORMATIONAL AND COMPUTATIONAL MATERIAL"), however, that (x) each Underwriter may prepare in reliance upon Rules 167 and convey to one or more 426 of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Securities Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or Regulations.
(ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates shall deliver to the Depositor, no later than two business days prior to the Time date of Sale and first use thereof, (iia) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter any Free Writing Prospectus prepared by or on behalf of such Underwriter that contains any "issuer information," as defined in Rule 433(h) of the Securities Act Regulations and footnote 271 of the Commission's Securities Offering Reform Release No. 33-8591 ("ISSUER INFORMATION") (which the parties hereto agree includes, without limitation, Pool Information (as defined herein)), and (b) any Free Writing Prospectus or portion thereof that contains only a description of the final terms of the Offered Securities. Notwithstanding the foregoing, any Free Writing Prospectus that contains only ABS Informational and Computational Materials shall be delivered by any Underwriter to the Company not later than the later of (a) two business days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act and (b) the date of first use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 3(b)(ii) above will constitute all Free Writing Prospectuses of the type described in such Section that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Securities.
(iv) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus required to be provided by it will to the Company pursuant to Section 3(b)(ii) above, did not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser Time of CertificatesSale, and will not as of the Closing Date, include any untrue statement of a material fact or or, when read in conjunction with the other information included in the Disclosure Package, omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, provided however, that no such Underwriter makes such representation, warranty or agreement no representation to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter Issuer Information supplied by the Transferor expressly for use thereinCompany to such Underwriter, which information was not corrected by information Corrective Information subsequently provided supplied by the Transferor Company to the such Underwriter reasonably prior to the time Time of Sale.
(v) The Company agrees to file with the Commission the following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered by any Underwriter to the Company pursuant to Section 3(b)(ii); and
(C) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications.
(vi) Any Free Writing Prospectus required to be filed pursuant to Section 3(b)(v) by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(A) Any Free Writing Prospectus or portion thereof required to be filed that contains only the description of the final terms of the Offered Securities shall be filed by the Company with the Commission within two days of the later of the date such Underwriter final terms have been established for all classes of Offered Securities and the date of first use;
(B) Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material shall be filed by the Company with the Commission not later than the later of the due date for filing the final Prospectus relating to the Offered Securities pursuant to Rule 424(b) of the Securities Act Regulations and two business days after the first use of such Free Writing Prospectus;
(C) Any Free Writing Prospectus required to be filed pursuant to Section 3(b)(v)(C) shall, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus; and
(iiD) The Company shall not be required to file (1) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Company, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Securities or (2) any Free Writing Prospectus or portion thereof that contains a description of the Offered Securities or the offering of the Offered Securities which does not reflect the final terms thereof.
(vii) Each Underwriter shall file with the Commission any Free Writing Prospectus that is used or referred to by it and distributed by or on behalf of the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 3(b)(vii), each Underwriter shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 3(b)(v) and 3(b)(vii), neither the Company nor any Underwriter shall be required to file any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(x) The Company and each Underwriter each agree that any Free Writing Prospectuses prepared by it shall contain the following legend: The depositor has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the depositor has filed with the SEC for more complete information about the depositor, the issuing trust, and this offering. You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free 1-8[xx-xxx-xxxx].
(xi) The Company and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 3 for a period of three years following the initial bona fide offering of the Offered Securities.
(A) In the event that any Underwriter becomes aware that, as of the Time of Sale, any Free Writing Prospectus prepared by it shall contain or on behalf of an Underwriter and delivered to an investor contained any untrue statement of a legend substantially material fact or, when read in conjunction with the other information included in the form of and Disclosure Package, omitted to state a material fact necessary in compliance with order to make the Rules and Regulations statements contained therein, in the light of the Actcircumstances under which they were made, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
not misleading (e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to a "DEFECTIVE FREE WRITING PROSPECTUS"), such Underwriter shall notify the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations Company thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth hereinwithin one business day after discovery.
(gB) Provided that the Defective Free Writing Prospectus was an Issuer Free Writing Prospectus or contained Issuer Information, such Underwriter shall, if requested by the Company:
(1) Prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (such corrected Free Writing Prospectus, a "CORRECTED FREE WRITING PROSPECTUS");
(2) Deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor; provided if the Time of Sale has occurred with respect to such investor, the Underwriter shall provide such investor with (w) adequate disclosure of the contractual arrangement, (x) adequate disclosure of the person's rights under the existing contract of sale at the time termination is sought, (y) adequate disclosure of the new information that is necessary to correct the misstatements or omissions in the information given at the time of the original contract of sale, and (z) a meaningful ability to elect to terminate or not to terminate the prior contract of sale and to elect to enter into or not enter into a new contract of sale; and
(3) In the event that the Defective Free Writing Prospectus was an Issuer Free Writing Prospectus or contained Issuer Information, and the Underwriters shall in good faith incur any costs to any investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs; provided that, before incurring such costs, in Underwriters first permit the Company access to the applicable investor and an opportunity to attempt to mitigate such costs through direct negotiation with such investor.
(xii) Each Underwriter, severally and Underwriter covenants with the Company that after the final Prospectus is available such Underwriter shall not jointly, represents, warrants distribute any written information concerning the Offered Securities to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
(xiii) Each Underwriter covenants and agrees with the Company that it shall not accept any offer to purchase Offered Securities until the time at least 24 hours after the time the related offeree received the Preliminary Prospectus, or such shorter period as such Underwriter and the Company shall agree.
(c) Each Underwriter has furnished or will furnish the Disclosure Package to purchasers of the Offered Securities prior to the Time of Sale.
(d) Each Underwriter represents and agrees that:
(i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMAFinancial Services and Markets Act) received by it in connection with the issue or sale of any Certificates the Offered Securities in circumstances in which Section 21(1) of the FSMA Financial Services and Markets Act does not apply to the Trust.Issuing Entity;
(hii) Each Underwriterit has complied and will comply with all applicable provisions of the Financial Services and Markets Act with respect to anything done by it in relation to the Offered Securities in, severally from or otherwise involving the United Kingdom; and
(iii) in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a "RELEVANT MEMBER STATE"), with effect from and not jointly, represents, warrants and agrees including the date on which the Prospectus Directive is implemented in that Relevant Member State (the "RELEVANT IMPLEMENTATION DATE") it has not offered, sold or otherwise made available and will not offermake an offer of Offered Securities to the public in that Relevant Member State prior to the publication of
(x) to legal entities which are authorized or regulated to operate in the financial markets or, sell if not so authorized or otherwise make available any Certificates regulated, whose corporate purpose is solely to invest in securities;
(y) to any retail investor legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than (euro)43,000,000 and (3) an annual net turnover of more than (euro)50,000,000, as shown in its last annual or consolidated accounts; or
(z) in any other circumstances which do not require the EEApublication by the Issuing Entity of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression “retail investor” an "offer of securities to the public" in relation to any Offered Securities in any Relevant Member State means a person who is one (or more) the communication in any form and by any means of sufficient information on the terms of the following: (i) a retail client offer and the securities to be offered so as defined to enable an investor to decide to purchase or subscribe the securities, as the same may be varied in point (11) of Article 4(1) of that Member State by any measure implementing the Prospectus Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within in that Member State and the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in expression "Prospectus Directive" means Directive 2003/71/EC (as amended)and includes any relevant implementing measure in each Relevant Member State.
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (Lares Asset Securitization, Inc.)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Offered Securities for sale to the public as set forth in the Preliminary ProspectusProspectus and that no Underwriter will offer, sell or otherwise distribute the Offered Securities (except for the sale thereof in exempt transactions) in any state in which the Offered Securities are not exempt from registration under "blue sky" or state securities laws (except where the Offered Securities will have been qualified for offering and sale at such Underwriter's direction under such "blue sky" or state securities laws).
(b) Other than In connection with the offering of the Offered Securities, the Underwriters may each prepare and provide to prospective investors Free Writing Prospectuses, or portions thereof, which the Company is required to file with the Commission in electronic format and will use reasonable efforts to provide to the Company such Free Writing Prospectuses, or portions thereof, in either Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except to the extent that the Company, in its sole discretion, waives such requirements, subject to the following conditions (to which such conditions each Underwriter agrees (provided that no Underwriter is responsible for any breach of the following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Preliminary Prospectus, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Offered Securities, unless such written communication (ii1) is made in reliance on Rule 134 of the Ratings Securities Act Regulations, (2) constitutes a prospectus satisfying the requirements of Rule 430B of the Securities Act Regulations or (3) constitutes a Free Writing Prospectus, (iii) the Prospectus and (iv) such Free Writing Prospectus is attached to this Agreement as Schedule IV. The Underwriter shall not convey or deliver in connection with the initial offering of the Offered Securities any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “"ABS informational and computational materials” material," as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; providedSecurities Act Regulations ("ABS INFORMATIONAL AND COMPUTATIONAL MATERIAL"), however, that (x) each Underwriter may prepare in reliance upon Rules 167 and convey to one or more 426 of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Securities Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or Regulations.
(ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees shall deliver to the Depositor, (ia) that it did not enter into any contract of sale for any Certificates no later than two business days prior to the Time date of Sale and (ii) thatfirst use thereof, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter any Free Writing Prospectus prepared by or on behalf of such Underwriter that contains any "issuer information," as defined in Rule 433(h) of the Securities Act Regulations and footnote 271 of the Commission's Securities Offering Reform Release No. 33-8591 ("ISSUER INFORMATION") (which the parties hereto agree includes, without limitation, Pool Information (as defined herein)), and (b) upon first use, any Free Writing Prospectus or portion thereof that contains only a description of the final terms of the Offered Securities. Notwithstanding the foregoing, any Free Writing Prospectus that contains only ABS Informational and Computational Materials shall be delivered by any Underwriter to the Company not later than the later of (a) two business days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Securities Act and (b) the date of first use of such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Company that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 3(b)(ii) above will constitute all Free Writing Prospectuses of the type described in such Section that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Offered Securities.
(iv) Each Underwriter represents and warrants to the Company that each Free Writing Prospectus required to be provided by it will to the Company pursuant to Section 3(b)(ii) above, did not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser Time of CertificatesSale, and will not as of the Closing Date, include any untrue statement of a material fact or or, when read in conjunction with the other information included in the Disclosure Package, omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, provided however, that no such Underwriter makes such representation, warranty or agreement no representation to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter Issuer Information supplied by the Transferor expressly for use thereinCompany to such Underwriter, which information was not corrected by information Corrective Information subsequently provided supplied by the Transferor Company to the such Underwriter reasonably prior to the time Time of Sale.
(v) The Company agrees to file with the Commission the following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered by any Underwriter to the Company pursuant to Section 3(b)(ii); and
(C) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating communications.
(vi) Any Free Writing Prospectus required to be filed pursuant to Section 3(b)(v) by the Company shall be filed with the Commission not later than the date of first use of the Free Writing Prospectus, except that:
(A) Any Free Writing Prospectus or portion thereof required to be filed that contains only the description of the final terms of the Offered Securities shall be filed by the Company with the Commission within two days of the later of the date such Underwriter final terms have been established for all classes of Offered Securities and the date of first use;
(B) Any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material shall be filed by the Company with the Commission not later than the later of the due date for filing the final Prospectus relating to the Offered Securities pursuant to Rule 424(b) of the Securities Act Regulations and two business days after the first use of such Free Writing Prospectus;
(C) Any Free Writing Prospectus required to be filed pursuant to Section 3(b)(v)(C) shall, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus; and
(iiD) The Company shall not be required to file (1) Issuer Information contained in any Free Writing Prospectus of an Underwriter or any other offering participant other than the Company, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Offered Securities or (2) any Free Writing Prospectus or portion thereof that contains a description of the Offered Securities or the offering of the Offered Securities which does not reflect the final terms thereof.
(vii) Each Underwriter shall file with the Commission any Free Writing Prospectus that is used or referred to by it and distributed by or on behalf of the Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 3(b)(vii), each Underwriter shall file with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 3(b)(v) and 3(b)(vii), neither the Company nor any Underwriter shall be required to file any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(x) The Company and each Underwriter each agree that any Free Writing Prospectuses prepared by it shall contain the following legend: The depositor has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the depositor has filed with the SEC for more complete information about the depositor, the issuing trust, and this offering. You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the depositor, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free 1-800[xx-xxx-xxxx].
(xi) The Company and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not required to be filed pursuant to this Section 3 for a period of three years following the initial bona fide offering of the Offered Securities.
(A) In the event that any Underwriter becomes aware that, as of the Time of Sale, any Free Writing Prospectus prepared by it shall contain or on behalf of an Underwriter and delivered to an investor contained any untrue statement of a legend substantially material fact or, when read in conjunction with the other information included in the form of and Disclosure Package, omitted to state a material fact necessary in compliance with order to make the Rules and Regulations statements contained therein, in the light of the Actcircumstances under which they were made, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
not misleading (e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to a "DEFECTIVE FREE WRITING PROSPECTUS"), such Underwriter shall notify the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations Company thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth hereinwithin one business day after discovery.
(gB) Provided that the Defective Free Writing Prospectus was an Issuer Free Writing Prospectus or contained Issuer Information, such Underwriter shall, if requested by the Company:
(1) Prepare a Free Writing Prospectus with Corrective Information that corrects the material misstatement in or omission from the Defective Free Writing Prospectus (such corrected Free Writing Prospectus, a "CORRECTED FREE WRITING PROSPECTUS");
(2) Deliver the Corrected Free Writing Prospectus to each investor which received the Defective Free Writing Prospectus prior to entering into a contract of sale with such investor; provided if the Time of Sale has occurred with respect to such investor, the Underwriter shall provide such investor with (w) adequate disclosure of the contractual arrangement, (x) adequate disclosure of the person's rights under the existing contract of sale at the time termination is sought, (y) adequate disclosure of the new information that is necessary to correct the misstatements or omissions in the information given at the time of the original contract of sale, and (z) a meaningful ability to elect to terminate or not to terminate the prior contract of sale and to elect to enter into or not enter into a new contract of sale; and
(3) In the event that the Defective Free Writing Prospectus was an Issuer Free Writing Prospectus or contained Issuer Information, and the Underwriters shall in good faith incur any costs to any investor in connection with the reformation of the contract of sale with the investor, the Company agrees to reimburse the Underwriters for such costs; provided that, before incurring such costs, in Underwriters first permit the Company access to the applicable investor and an opportunity to attempt to mitigate such costs through direct negotiation with such investor.
(xii) Each Underwriter, severally and Underwriter covenants with the Company that after the final Prospectus is available such Underwriter shall not jointly, represents, warrants distribute any written information concerning the Offered Securities to a prospective investor unless such information is preceded or accompanied by the final Prospectus.
(xiii) Each Underwriter covenants and agrees with the Company that it shall not accept any offer to purchase Offered Securities until the time at least 24 hours after the time the related offeree received the Preliminary Prospectus, or such shorter period as such Underwriter and the Company shall agree.
(c) Each Underwriter has furnished or will furnish the Disclosure Package to purchasers of the Offered Securities prior to the Time of Sale.
(d) Each Underwriter represents and agrees that:
(i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMAFinancial Services and Markets Act) received by it in connection with the issue or sale of any Certificates the Offered Securities in circumstances in which Section 21(1) of the FSMA Financial Services and Markets Act does not apply to the Trust.Issuer;
(hii) Each Underwriterit has complied and will comply with all applicable provisions of the Financial Services and Markets Act with respect to anything done by it in relation to the Offered Securities in, severally from or otherwise involving the United Kingdom; and
(iii) in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a "RELEVANT MEMBER STATE"), with effect from and not jointly, represents, warrants and agrees including the date on which the Prospectus Directive is implemented in that Relevant Member State (the "RELEVANT IMPLEMENTATION DATE") it has not offered, sold or otherwise made available and will not offermake an offer of Offered Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Offered Securities which has been approved by the competent authority in that Relevant Member State or, sell where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Offered Securities to the public in that Relevant Member State at any time:
(x) to legal entities which are authorized or otherwise make available any Certificates regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(y) to any retail investor legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than (euro)43,000,000 and (3) an annual net turnover of more than (euro)50,000,000, as shown in its last annual or consolidated accounts; or
(z) in any other circumstances which do not require the EEApublication by the Issuer of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression “retail investor” an "offer of securities to the public" in relation to any Offered Securities in any Relevant Member State means a person who is one (or more) the communication in any form and by any means of sufficient information on the terms of the following: (i) a retail client offer and the securities to be offered so as defined to enable an investor to decide to purchase or subscribe the securities, as the same may be varied in point (11) of Article 4(1) of that Member State by any measure implementing the Prospectus Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within in that Member State and the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in expression "Prospectus Directive" means Directive 2003/71/EC (as amended)and includes any relevant implementing measure in each Relevant Member State.
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (Lares Asset Securitization, Inc.)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose Each Underwriter proposes to offer and/or solicit offers for the Certificates Offered Notes to be purchased by it for sale to the public as set forth in the Preliminary ProspectusPricing Information Package and in the Prospectus and each Underwriter agrees that all such offers, solicitations and sales by it shall be made in compliance with all applicable laws and regulations. Prior to May 23, 2006, none of the Underwriters has offered, pledged, sold, disposed of or otherwise transferred any Offered Note or any security backed by the Financed Student Loans, any interest in any Offered Note or such security or any Financed Student Loan.
(b) Other than Each Underwriter will enter into a Contract of Sale with an investor only after delivery of the Pricing Information Package to such investor. For purposes of this Agreement, "Contract of Sale" shall have the same meaning as in Rule 159 under the Act and all Commission guidance relating to Rule 159. The Definitive Free Writing Prospectus shall prominently set forth substantially the following statement: This Definitive Free Writing Prospectus supersedes the information in any free writing prospectus previously delivered in connection with this offering, to the extent that this Definitive Free Writing Prospectus is inconsistent with any information in any free writing prospectus delivered in connection with this offering.
(c) Each Underwriter may prepare and provide to investors certain Free Writing Prospectuses (as defined below), subject to the following conditions:
(1) Unless preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Act, an Underwriter shall not convey or deliver any Written Communication (as defined herein) to any person in connection with the initial offering of the Offered Notes, unless such Written Communication (i) is made in reliance on Rule 134 under the Preliminary ProspectusAct, (ii) constitutes a prospectus satisfying the Ratings Free Writing Prospectusrequirements of Rule 430B under the Act, (iii) is the Definitive Free Writing Prospectus and or the Term Sheet, or (iv) any materials included both (A) constitutes a Free Writing Prospectus used in one reliance on Rule 164 and (B) includes only information that is within the definition of either (x) "ABS Informational and Computational Materials" as defined in Item 1100 of Regulation AB or more “road shows” (y) Permitted Additional Materials (as defined in Rule 433(h) under herein). "Written Communication" has the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants same meaning as that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as term is defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (National Collegiate Student Loan Trust 2006-2)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Final Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Final Prospectus and the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and Sale, (ii) that, during the period prior to the filing of the final Final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract Contract of sale Sale (within the meaning of Rule 159 under the Act) for such investorinvestor and (iii) that it will deliver any final Corrected Prospectus (and any information that corrects any material misstatements or omissions) to each investor at least 48 hours before the new Time of Sale.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Final Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer or the Transferor, and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom.
(h) Each With respect to each Member State of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each a “Relevant Member State”), each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates an offer of notes which are the subject of the offering contemplated by the Prospectus to the public in that Relevant Member State other than: (i) to any retail investor legal entity which is a “qualified investor” as defined in the EEAProspectus Directive; (ii) to fewer than 150 natural or legal persons per Relevant Member State (other than qualified investors as defined in the Prospectus Directive), and in any such instance only with the prior written consent of the relevant underwriter or underwriters nominated by the Issuer of any such offer or if no such underwriter has been nominated the prior written consent of the Issuer; or (iii) at any time in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided, that no such offer of notes shall require the Issuer, the Transferor or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression “retail investoroffer of notes to the public” in relation to any notes in any Relevant Member State means a person who is one (or more) the communication in any form and by any means of sufficient information on the terms of the following: (i) a retail client offer and the notes to be offered so as defined to enable an investor to decide to purchase or subscribe the notes, as the same may be varied in point (11) of Article 4(1) of that Relevant Member State by any measure implementing the Prospectus Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where in that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Relevant Member State. The expression ‘‘Prospectus Directive’’ means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU), and includes any relevant implementing measure in the Relevant Member State. The countries comprising the “European Economic Area” are Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
(i) Each Underwriter, severally and but not jointly, covenants with the Bank represents and the Transferor that on or prior to the Closing Dateagrees that, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) it has not delivered, and will not deliver without the prior written consent of the Transferor or the Bank, any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or the Bank, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Transferor or the Bank or refer such Hired NRSRO or other nationally recognized statistical rating organization to the Transferor or refer such Rating Agency to the TransferorBank, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the CertificatesUnderwritten Notes, including information about the characteristics of the Receivables and the legal structure of the CertificatesUnderwritten Notes, or as contemplated by Rule 17g-5(a)(3)(iii)(C), and (b) undertaking credit rating surveillance on the CertificatesUnderwritten Notes, including information about the characteristics and performance of the Receivables, as contemplated by Rule 17g-5(a)(3)(iii)(D).
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Issuance Trust)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the European Economic Area (the “EEA”). For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (EU) 2016/97 (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC Regulation (EU) 2017/1129 (as amendedamended or superseded).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Final Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Final Prospectus and the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and Sale, (ii) that, during the period prior to the filing of the final Final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract Contract of sale Sale (within the meaning of Rule 159 under the Act) for such investorinvestor and (iii) that it will deliver any final Corrected Prospectus (and any information 12 Underwriting Agreement-Series 2023-2 that corrects any material misstatements or omissions) to each investor at least 48 hours before the new Time of Sale.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Final Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each UnderwriterIssuer or the Transferor, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally it has complied and not jointly, covenants will comply with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) all applicable provisions of the Act FSMA with respect to the Certificates, anything done by it (a) will not deliver any Rating Information (as defined below) in relation to any Rating Agency Notes in, from or any other “nationally recognized statistical rating organization” (within otherwise involving the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesUnited Kingdom.
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Funding LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, the Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the TrustTrust or the Transferor.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the United Kingdom. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “EUWA”); (ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended) as it forms part of domestic law by virtue of the EUWA, and the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe for the Certificates.
(i) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the European Economic Area (the “EEA”). For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended)the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II II; or (iii) not a qualified investor as defined in Directive 2003/71/EC Regulation (EU) 2017/1129 (as amended), and the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe for the Certificates.
(ij) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates that are Registered Certificates for sale to the public as set forth in the Preliminary Final Prospectus.
(b) Other than Each Underwriter severally covenants and agrees with the Company as to itself that:
(i) Prior to entering into any Contract of Sale, the Preliminary Prospectus, Underwriter shall convey the Pricing Free Writing Prospectus to each prospective investor.
(ii) Unless preceded or accompanied by a prospectus satisfying the Ratings requirements of Section 10(a) of the Securities Act or access thereto is made available pursuant to Rule 173 of the Securities Act, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Certificates, unless such written communication (1) is made in reliance on Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act or (3) is a Free Writing Prospectus, .
(iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating An Underwriter may convey a Preliminary Term Sheet to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred a potential investor prior to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation entering into a Contract of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless Sale with such Underwriter has obtained the prior written approval of the Transferorinvestor; provided, however, that (x) each such Underwriter may prepare and convey to one or more shall not enter into a Contract of its potential investors one or more “written communications” (as defined in Rule 405 under Sale with such investor unless the Act) containing no more than the following: Underwriter has complied with paragraph (i) information contemplated by Rule 134 under the Act and included or above prior to be included in the Preliminary Prospectussuch Contract of Sale, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each such Underwriter will be permitted shall deliver a copy of the proposed Preliminary Term Sheet to provide confirmations of salethe Depositor and its counsel prior to the anticipated first use and shall not convey any such Preliminary Term Sheet to which the Depositor or its counsel reasonably objects.
(civ) Each An Underwriter severally and not jointly represents and agrees may convey Computational Materials (ix) that it did not enter into any contract of sale for any Certificates to a potential investor prior to the Time entering into a Contract of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for with such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no (A) such Underwriter makes shall not enter into a Contract of Sale with such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to investor unless the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance has complied with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it paragraph (i) has complied and will comply with all applicable provisions above prior to such Contract of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, Sale and (iiB) has only communicated or caused such Computational Materials shall not be disseminated in a manner reasonably designed to be communicated and will only communicate or cause lead to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communicationits broad unrestricted dissemination; provided, however, that if an Underwriter receives an oral communication from such Computational Materials are disseminated in a Rating Agencymanner reasonably designed to lead to its broad unrestricted dissemination, such Underwriter shall file with the Commission such Computational Materials, and (y) to an investor after a Contract of Sale, provided that the Underwriter has complied with paragraph (i) above in connection with such Contract of Sale. The Underwriter shall keep sufficient records of any conveyance of Computational Materials to potential or actual investors and shall maintain such records as required by the Rules and Regulations.
(v) If an Underwriter does not furnish a Free Writing Prospectus that is authorized required to inform be filed with the Commission to the Depositor’s counsel prior to the scheduled print date of the Final Prospectus, such Rating Agency Underwriter will be deemed to have represented that it will respond did not convey any such Free Writing Prospectus to any potential investor.
(vi) Each Free Writing Prospectus shall contain legends that are substantially similar to the oral communication following: The issuer has filed a registration statement (including a prospectus) with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency SEC for the purpose of (a) determining offering to which this free writing prospectus relates. Before you invest, you should read the initial credit rating base prospectus in that registration statement and other documents the issuer has filed with the SEC for the Certificates, including more complete information about the characteristics of the Receivables issuer and the legal structure of the Certificates, or (b) undertaking credit rating surveillance this offering. You may get these documents for free by visiting XXXXX on the CertificatesSEC website at xxx.xxx.xxx. Alternatively, including the issuer, any underwriter or any dealer participating in the offering will arrange to send you the base prospectus if you request it by calling toll-free 1-877-858-5407. This free writing prospectus is not required to contain all information that is required to be included in the base prospectus. The information in this free writing prospectus is preliminary and is subject to completion or change. The information in this free writing prospectus, if conveyed prior to the time of your commitment to purchase, supersedes information contained in any prior similar free writing prospectus relating to these securities. This free writing prospectus is not an offer to sell or a solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. This free writing prospectus is being delivered to you solely to provide you with information about the characteristics and performance offering of the Receivablesoffered certificates referred to in this free writing prospectus and to solicit an indication of your interest in purchasing such offered certificates, when, as and if issued. Any such indication of interest will not constitute a contractual commitment by you to purchase any of the offered certificates. You may withdraw your indication of interest at any time.
(vii) Any Computational Materials shall include legends, in addition to those specified in paragraph (vi) above, substantially similar to the following: The information in this free writing prospectus may be based on preliminary assumptions about the pool assets and the structure. Any such assumptions are subject to change. The information in this free writing prospectus may reflect parameters, metrics or scenarios specifically requested by you. If so, prior to the time of your commitment to purchase, you should request updated information based on any parameters, metrics or scenarios specifically required by you. Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented in this free writing prospectus, although that information may be based in part on loan level data provided by the issuer or its affiliates.
(viii) Each Underwriter severally agrees to retain all Free Writing Prospectuses that it has used and that are not filed pursuant to this Section 4 for a period of three years following the initial bona fide offering of the Registered Certificates.
(c) The following terms shall have the meanings set forth below, unless the context clearly indicates otherwise:
Appears in 1 contract
Samples: Underwriting Agreement (Citigroup Mortgage Loan Trust 2006-Nc2)
Offering by Underwriters. (a) It is understood that, after the Effective Date, The Company hereby confirms that the Underwriters propose and dealers have been authorized to offer the Certificates for sale distribute or cause to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the be distributed any Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) Pricing Disclosure Package and one or more term sheets containing pricing and other terms contained in the Prospectus and are authorized to distribute the Prospectus (ivas from time to time amended or supplemented if the Company furnishes amendments or supplements thereto to the Underwriters). The Representative(s) agree that, as soon as the Representative(s) believe the offering of the Shares has been terminated, the Representative(s) will so advise the Company. Each Underwriter severally represents and warrants to, and agrees with, the Company and each other Underwriter that it has not made, and will not make, any materials included in one or more offer relating to the Shares that would constitute a “road showsfree writing prospectus” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”405), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
Company and the Representative(s), other than one or more free writing prospectuses relating to the Shares containing customary information not inconsistent with one or more term sheets containing pricing and other terms contained in the Prospectus or otherwise containing “issuer information” (fas defined in Rule 433) Each Underwritercontained in any document filed by the Company with the Commission prior to the use of such free writing prospectus. The Underwriters agree that they, severally to their best knowledge after due inquiry, will comply with all applicable laws and not jointly, represents, warrants and agrees that it has not and will not, directly regulations in force in any jurisdiction in which they offer or indirectly, offer, sell the Shares or deliver any of the Certificates possesses or distribute distributes the Prospectus, the Ratings any Preliminary Prospectus or any Issuer Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to and will obtain any consent, approval or permission required by them for the Certificates in offer or from any jurisdiction except sale by them of the Shares under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that willin force in any jurisdiction to which they are subject or in which they make such offers or sales, to the best of its knowledge and belief, not impose any obligations on the Transferor except as including those set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of under the Financial Services and Markets Xxx 0000, as amended (the caption “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor Selling Restrictions” in the EEA. For section entitled “Underwriting” in the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended)most recent Preliminary Prospectus.
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (Lehman Brothers Holdings Inc)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, represents and warrants to and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of with the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.Issuer that:
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates Securities, in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.Issuer;
(hii) Each Underwriterit has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, severally from or otherwise involving the United Kingdom; and
(iii) in relation to each Member State of the European Economic Area (each, a “Relevant Member State”), with effect from and not jointly, represents, warrants and agrees including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not offered, sold or otherwise made available and will not offermake an offer to the public of any Securities which are the subject of the offering contemplated by this Agreement in that Relevant Member State, sell or otherwise except that it is permitted to have made and may make available an offer to the public in that Relevant Member State of any Certificates Securities at any time with effect from and including the Relevant Implementation Date under the following exemptions under the Prospectus Directive, if they have been implemented in that Relevant Member State:
(A) to any retail investor legal entities which are qualified investors as defined in the EEAProspectus Directive;
(B) to fewer than 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the Representatives for any such offer; or
(C) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of Securities shall require the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression an “retail investoroffer to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase any Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(iand amendments thereto, including the 2010 PD Amending Directive) Each Underwriter, severally and not jointly, covenants with the Bank includes any relevant implementing measure in each Relevant Member State and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an expression “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information2010 PD Amending Directive” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesDirective 2010/73/EU.
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwritercovenants, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.Company and AHFC that:
(fa) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (activity, within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended (the “FSMA) ”), received by it in connection with the issue or sale of any Certificates Underwritten Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.Trust or the depositor; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Underwritten Notes in, from or otherwise involving the United Kingdom;
(hb) Each Underwriterin relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, severally a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not jointlymade and will not make an offer of Underwritten Notes to any person in that Relevant Member State; provided that no such offer of Underwritten Notes shall require the Trust, represents, warrants and agrees that the depositor or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive; and
(c) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates Underwritten Notes to any “retail investor investor” in the EEAEuropean Economic Area. For the purposes of this provision, Section 4 of this Agreement: (1) the expression “retail investor” means a person who is one (or more) of the following: (iA) a “retail client client” as defined in point Point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID MIFID II”); or (iiB) a customer “customer” within the meaning of Directive 2002/92/EC (EU) 2016/97 (known as the Insurance Mediation Directive) as amended), where that customer would not qualify as a “professional client client” as defined in point Point (10) of Article 4(1) of MiFID II MIFID II; or (iiiC) not a “qualified investor investor” as defined in the Prospective Directive; (2) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Underwritten Notes to be offered so as to enable an investor to decide to purchase or to subscribe for the Underwritten Notes; and (3) the expression “Prospectus Directive” means Directive 2003/71/EC (as amended)amended or superseded) and includes any relevant implementing measure in each Relevant Member State.
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (Honda Auto Receivables 2019-1 Owner Trust)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and acknowledges to, and agrees with, the Company and Braskem that:
(a) it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any Free Writing Prospectus (which term includes, for purposes of this Section 4(a), use of any written information furnished to the Commission by Braskem or the Company and not incorporated by reference into the Registration Statement and any press release issued by Braskem or the Company), other than a Free Writing Prospectus that it will would not, at any as a result of use by such time that Underwriter, trigger an obligation to file such Underwriter is acting as an “underwriter” Free Writing Prospectus with the Commission pursuant to Rule 433 (as defined other than a Free Writing Prospectus permitted under clause (b)). It will, pursuant to reasonable procedures developed in Section 2(a)(11) good faith, retain copies of each Free Writing Prospectus used or referred to by it, in accordance with Rule 433 under the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.;
(fb) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly without the prior written consent of Braskem or indirectlythe Company, offer, sell or deliver use any Free Writing Prospectus that contains the final terms of the Certificates or distribute the Prospectus, the Ratings Notes unless such terms have previously been included in a Free Writing Prospectus, Preliminary Prospectus or filed with the Commission;
(c) it is not subject to any other pending proceeding under Section 8A of the Securities Act with respect to the offering material (and will promptly notify the Company if any such proceeding against it is initiated during the period in which a prospectus relating to the Certificates in or from any jurisdiction except Securities is required to be delivered under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.Securities Act);
(gd) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions in relation to each Member State of the Financial Services European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), that with effect from and Markets Xxx 0000, as amended including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “FSMARelevant Implementation Date”), with respect it has not made and will not make an offer of Notes to anything done the public in that Relevant Member State other than:
(A) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(B) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the Underwriter or Underwriters nominated by it the Company for any such offer; or
(C) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of Notes shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Notes to the public” in relation to any Certificates inNotes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes, from or otherwise involving as the United Kingdomsame may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State; “Prospectus Directive” means European Council Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in the Relevant Member State; and “2010 PD Amending Directive” means Directive 2010/73/EU;
(iie) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the United Kingdom Financial Services and Markets Xxx 0000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.Company or Braskem; and it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom;
(hf) Each Underwriterthe offering and sale of the Notes may only be made in Switzerland on the basis of a private placement, severally and not jointly, represents, warrants and agrees that as a public offering;
(g) it has not offered, offered or sold or otherwise made available and will not offeroffer or sell Notes in Hong Kong, sell or otherwise make available by means of any Certificates document, other than (a) to any retail investor in the EEA. For the purposes of this provision, the expression “retail investorprofessional investors” means a person who is one (or more) of the following: (i) a retail client as defined in point the Securities and Futures Ordinance (11Cap. 571) of Article 4(1Hong Kong and any rules made under that Ordinance; or (b) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies Ordinance (Cap. 32) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer Hong Kong or which do not constitute an offer to the public within the meaning of Directive 2002/92/EC (as amended)that Ordinance; and it has not issued or had in its possession for the purposes of issue in Hong Kong or elsewhere and will not issue or hold for the purpose of issue in Hong Kong or elsewhere the Registration Statement, where that customer would not qualify as a professional client as defined the General Disclosure Package or in point (10) of Article 4(1) of MiFID II the Prospectus, any advertisement, invitation or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior document relating to the Closing DateNotes which is directed at, and thereafteror the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11securities laws of Hong Kong) of the Act other than with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) Notes which are or are intended to any Rating Agency be disposed of only to persons outside Hong Kong or any other only to “nationally recognized statistical rating organizationprofessional investors” (within the meaning of the Exchange Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules made under that Ordinance;
(h) the Notes will be and have been offered in Singapore pursuant to the exemptions under Section 274 and Section 275 of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”); accordingly, it will not circulate or distribute the Registration Statement, the General Disclosure Package or in the Prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Notes, nor will it offer or sell the Notes, or make the Notes the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (1) to an institutional investor specified in Section 274 of the SFA, (2) to a relevant person pursuant to Section 275(1), or any person pursuant to Section 275(1A), and (b) will not participate in any oral communication of Rating Information accordance with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning conditions, specified in Section 275 of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the CertificatesSFA, or (b3) undertaking credit rating surveillance on otherwise pursuant to, and in accordance with the Certificatesconditions of, including information about the characteristics and performance any other applicable provision of the ReceivablesSFA;
(i) it has not offered or sold, and will not offer or sell, any Notes in Brazil, except in circumstances that do not constitute a public offering or distribution under Brazilian laws and regulations; and
(j) it has not made an invitation, and will not make an invitation, to the public in the Cayman Islands to subscribe for the Notes.
Appears in 1 contract
Samples: Underwriting Agreement (Braskem Sa)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Class A Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Class A Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Class A Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Class A Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Class A Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Class A Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Class A Certificates, transfer, deposit or otherwise convey any Class A Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Class A Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Class A Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Class A Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000Act 2000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the European Economic Area (the “EEA”). For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (EU) 2016/97 (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC Regulation (EU) 2017/1129 (as amendedamended or superseded).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Class A Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”)Prospectus, each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “"written communication” " (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “"ABS informational and computational materials” " as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the TransferorTransferors; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “"written communications” " (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns as well as a column or other entries entry showing the status of the subscriptions, subscriptions for the Certificates or expected pricing parameters, the weighted average life or the trade date parameters of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale"UNDERWRITER FREE WRITING PROSPECTUS").
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the TransferorTransferors) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any written, inaccurate information furnished to the Underwriter by the Transferor Transferors expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferors to the Underwriter reasonably prior to before the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “"free writing prospectuses” " under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “"underwriter” " (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the TransferorTransferors.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor Transferors except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iv LLC)
Offering by Underwriters. (a) It is understood that, after Upon the Effective Dateauthorization by the Representatives of the release of the Underwritten Notes, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to upon the public as terms and conditions set forth in this Agreement and the Preliminary Prospectus.
(ba) Other than Each Underwriter, severally and not jointly, represents, warrants, covenants and agrees with the Trust and Verizon Wireless that:
(i) other than the Preliminary Prospectus and the Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, prepared, authorized, approved, disseminated approved or referred to and will not prepare, make, use, authorize, approve, disseminate approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including including, but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Securities Act unless such Underwriter has obtained the prior written approval of Verizon Wireless and the TransferorDepositor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors without the consent of Verizon Wireless, the Depositor or any of their respective affiliates one or more “written communications” (as defined in Rule 405 under the Securities Act) containing no more in the form of (a) information included in the Time of Sale Information, to the extent it has already been filed with the Commission in the Preliminary Prospectus or the Ratings Free Writing Prospectus, (b) information customarily included in confirmations of sales of securities and notices of allocations, (c) certain Intex.cdi files relating to the Receivables that does not contain any Issuer Information (as defined below) other than Issuer Information included in the following: Preliminary Prospectus previously filed with the Commission, (id) information contemplated by Rule 134 under the Act and included or to be included in Securities Act, (e) the Preliminary ProspectusFirst Bloomberg Screen, (f) the Ratings Free Writing Prospectus or the Prospectus, Second Bloomberg Screen or (iig) columns preliminary pricing information or other entries showing the information regarding status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates subscriptions that does not contain any Issuer Information (each such communicationother written communication enumerated in this Section 4(a)(i), an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus). As used herein, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for term “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Issuer Information” means any oral or written information provided of the type specified in clauses (1) – (5) of footnote 271 of Commission Release No. 33-8591 (Securities Offering Reform), other than Underwriter Derived Information. As used herein, the term “Underwriter Derived Information” shall refer to a Rating Agency for information of the purpose type described in clause (5) of footnote 271 of Commission Release No. 33-8591 (aSecurities Offering Reform) determining the initial credit rating for the Certificateswhen prepared by any Underwriter, including information about traditional computational and analytical materials prepared by the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.Underwriter;
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Prospectus and the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates Notes authorized or and approved by the Transferor Bank (the each, a “Permitted Additional InformationRoad Show”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Prospectus, the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates Notes authorized or approved by the Transferor Bank (the each, a “Permitted Additional InformationRoad Show”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates Notes authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesNotes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Notes prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Notes at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesNotes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesNotes, transfer, deposit or otherwise convey any Certificates Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Notes without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Notes or distribute the Prospectus, Preliminary Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates Notes in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each With respect to each Member State of the European Economic Area which has implemented the Prospectus Derivative (each a “Relevant Member State”), each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not offered, sold or otherwise made available and will not offermake an offer of Notes to the public in that Relevant Member State except that it may, sell or otherwise with effect from and including the Relevant Implementation Date, make available an offer of Notes to the public in that Relevant Member State (i) at any Certificates time to any retail investor legal entity which is a “qualified investor” as defined in the EEAProspectus Directive; (ii) at any time to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of Directive 2010/73/EU, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive); or (iii) at any time in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of Notes shall require the Trust or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, (A) the expression “retail investoroffer any Notes to the public” in relation to any Notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe the Notes, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, (B) the expression “Prospectus Directive” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended)and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in the Relevant Member State, (C) the expression “2010 PD Amending Directive” means Directive 2010/73/EU, and (D) the countries comprising the “European Economic Area” are Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
(i) Each Underwriter, severally and not jointly, covenants with the Bank TRS and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the CertificatesNotes, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank TRS or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank TRS or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the CertificatesNotes, including information about the characteristics of the Receivables and the legal structure of the CertificatesNotes, or (b) undertaking credit rating surveillance on the CertificatesNotes, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp VIII LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Certificates Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than Each Underwriter severally but not jointly agrees that if it is a foreign broker or dealer not eligible for membership in the Financial Industry Regulatory Authority, Inc. (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional InformationFINRA”), each Underwriter severally and it will not jointly representseffect any transaction in the Notes within the United States or induce or attempt to induce the purchase of or sale of the Notes within the United States, warrants and covenants except that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations make sales to the other Underwriters or to its United States affiliates; provided that such sales are made in compliance with an exemption of salecertain foreign brokers or dealers under Rule 15a-6 under the Exchange Act, and in conformity with the Rules of Fair Practice of FINRA as such Rules apply to non-FINRA brokers or dealers.
(c) Each Underwriter severally and but not jointly represents and agrees that: (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), ) with respect to anything done by it in relation to any Certificates the Notes in, from or otherwise involving the United Kingdom, ; and (ii) it has only communicated or caused to be communicated and or will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates of the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer.
(hd) Each UnderwriterIn relation to each member state of the European Economic Area which has implemented the Prospectus Directive (each, a “relevant member state”), each Underwriter severally but not jointly agrees that, with effect from and not jointlyincluding the date on which the Prospectus Directive was implemented in that relevant member state (the relevant implementation date), represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates an offer of the Notes to the public in that relevant member state other than to any retail legal entity which is a qualified investor as defined in the EEAProspectus Directive; provided that no such offer of the Notes shall require the Issuer, Citibank or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression an “retail investoroffer of the Notes to the public” in any relevant member state means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes, as the expression may be varied in that relevant member state by any measure implementing the Prospectus Directive in that relevant member state, and the expression “Prospectus Directive” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended), including by Directive 2010/73/EU) and includes any relevant implementing measure in the relevant member state.
(ie) Each Underwriter, Underwriter severally but not jointly represents and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency agrees that it will respond to not at any time transfer, deposit or otherwise convey any Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interests in, such Notes without the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or prior written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics consent of the Receivables Issuer and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesCitibank.
Appears in 1 contract
Samples: Underwriting Agreement (Citibank, N.A., as Depositor of Citibank Credit Card Issuance Trust)
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Certificates Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Each Underwriter severally and but not jointly represents, warrants represents and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the followingagrees that: (i) information contemplated it has complied and will comply with all applicable provisions of the Financial Services and Markets Act 2000, as amended (the “FSMA”) with respect to anything done by Rule 134 under it in relation to the Act Notes in, from or otherwise involving the United Kingdom; and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns it has only communicated or other entries showing caused to be communicated or will only communicate or cause to be communicated any invitation or inducement to engage in investment activities (within the status meaning of Section 21 of the subscriptions, FSMA) received by it in connection with the expected pricing parameters, the weighted average life issue or the trade date sale of any of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”Notes in circumstances in which Section 21(1) and (y) each Underwriter will be permitted of the FSMA does not apply to provide confirmations of salethe Issuer or Citibank.
(c) Each Underwriter severally and but not jointly represents and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any of the Notes to any retail investor in the UK. For the purpose of this provision, (i) the expression “retail investor” means a person who is one (or more) of the following: (A) a retail client, as defined in point (8) of article 2 of Regulation (EU) 2017/565, as it forms part of UK law by virtue of the EUWA, subject to amendments made by the Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (SI 2018/1403) (as may be amended or superseded from time to time); or (B) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) 600/2014, as it did forms part of UK law by virtue of the EUWA, subject to amendments made by the Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (SI 2018/1403) and as amended; or (C) not enter into any contract a qualified investor as defined in Article 2 of sale for any Certificates prior Regulation (EU) 2017/1129 (as amended), as it forms part of UK law by virtue of the EUWA, subject to amendments made by the Time of Sale Prospectus (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/1234) and as amended; and (ii) that, during the period prior to expression “offer” includes the filing communication in any form and by any means of sufficient information on the terms of the final Prospectus (offer and the Notes so as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each enable an investor to whom it sells Certificates at decide to purchase or prior to subscribe the time of the contract of sale for such investorNotes.
(d) Each Underwriter severally and not but jointly represents, warrants represents and agrees that:
that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any of the Notes to any retail investor in the European Economic Area. For the purpose of this provision, (i) each Underwriter Free Writing Prospectus prepared by it will not, as the expression “retail investor” means a person who is one (or more) of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser following: (A) a retail client as defined in point (11) of CertificatesArticle 4(1) of 2014/65/EU (as amended, include any untrue statement of material fact or omit any material fact necessary to make “MiFID II”), (B) a customer within the statements contained therein, when read together with the Preliminary Prospectus, in light meaning of the circumstances under which they were madeInsurance Distribution Directive, where that customer would not misleadingqualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result (C) not a qualified investor as defined in Article 2 of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing ProspectusRegulation (EU) 2017/1129; and
and (ii) each Underwriter Free Writing Prospectus prepared the expression “offer” includes the communication in any form and by it shall contain a legend substantially in any means of sufficient information on the form of and in compliance with the Rules and Regulations terms of the Act, offer and shall otherwise conform the Notes so as to any requirements for “free writing prospectuses” under enable an investor to decide to purchase or subscribe the ActNotes.
(e) Each Underwriter, Underwriter severally and but not jointly, represents, warrants jointly represents and agrees that it will not, not at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest interests in, such Certificates Notes without the prior written consent of the TransferorIssuer and Citibank.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (Citibank Credit Card Master Trust I)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the European Economic Area (the “EEA”). For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (EU) 2016/97 (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amendedamended or superseded).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Time of Sale Information and the Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, representsrepresents and warrants to, warrants and agrees with, the Depositor:
(i) [in relation to each member state of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State, it has not made and will not, not make an offer of the Notes to the public in that Relevant Member State other than:
(A) at any such time that such Underwriter is acting as an to legal entities which are “underwriterqualified investors” (as defined in Section 2(a)(11the Prospectus Directive;
(B) at any time to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than “qualified investors” as defined in the Prospectus Directive) subject to obtaining the prior consent of the relevant Underwriter or Underwriters nominated by the Issuer for any such offer; or
(C) at any time in any other circumstances falling within Article 3(2) of the Act) with respect to the CertificatesProspectus Directive; provided that, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, no such Certificates without the prior written consent offer of the Transferor.
Notes referred to in (fA) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly through (C) above shall require the Issuer or indirectly, offer, sell or deliver any Underwriter to publish a prospectus pursuant to Article 3 of the Certificates Prospectus Directive or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating supplement a prospectus pursuant to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions Article 16 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEAProspectus Directive. For the purposes of this provisionSection 4(b), (x) the expression an “offer of the Notes to the public” in relation to any Notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe to the Notes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, (y) the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.Prospectus
Appears in 1 contract
Samples: Underwriting Agreement (Daimler Retail Receivables LLC)
Offering by Underwriters. (a) It is understood that, that after the Effective Date, the Underwriters propose each Underwriter proposes to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Each Underwriter shall comply with all applicable laws and regulations in connection with its use of Free Writing Prospectuses, including but not limited to Rules 164 and 433 of the Act.
(c) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus Additional Information and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or other information approved by the Transferor (the “Permitted Additional Information”)Transferor, each Underwriter severally and not jointly represents, warrants and covenants agrees with the Transferor and the Bank that it has not prepared, made, used, prepared, authorized, approved, disseminated approved or referred to and will not prepare, make, use, prepare, authorize, approve, disseminate approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesNotes, including including, but not limited to to, any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained Act. Notwithstanding the prior written approval of foregoing, the Transferor; provided, however, Transferor agrees that (x) each Underwriter the Underwriters may prepare and convey disseminate information on Bloomberg to one or more of its potential prospective investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: relating solely to (i) information contemplated by of the type identified in Rule 134 under of the Act and included or to be Act, (ii) information included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (iiiii) columns or other entries showing the status of allocations and subscriptions of the subscriptionsNotes, the expected pricing parameters, parameters of the Notes and the yields and weighted average life or the trade date lives of the Certificates Notes, and (iv) information constituting final terms of the Notes within the meaning of Rule 433(d)(5)(ii) under the Act (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations ); provided that in the case of sale.
(c) Each Underwriter severally and not jointly represents and agrees the foregoing clauses (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and through (ii) thativ), during the period prior to the filing of other than the final pricing terms, such Underwriter Free Writing Prospectus (as notified would not be required to be filed with the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investorCommission.
(d) Each Underwriter severally and not jointly represents, warrants and agrees with the Transferor, the Issuer and the Bank that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificatesthe Notes, include any untrue statement of a material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that which was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate written information furnished to the related Underwriter by the Transferor Transferor, the Issuer or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferor, the Issuer or the Bank to the related Underwriter reasonably within a reasonable period of time prior to the time of first use of such Underwriter Free Writing Prospectus; and;
(ii) if required by Rule 433(c)(2)(i) of the Act, each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations Rule 433(c)(2)(i) of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act; and
(iii) each Underwriter Free Writing Prospectus prepared by it shall be delivered to the Transferor no later than the date of first use and, unless otherwise agreed to by the Transferor and the related Underwriter, such delivery shall occur no later than the close of business for the Bank (Central Time) on the date of first use; provided, however, if the date of first use is not a Business Day, such delivery shall occur no later than the close of business for the Bank (Central Time) on the first Business Day after such date of first use.
(e) Each Underwriter, severally and not jointly, represents, warrants Underwriter represents and agrees (i) that it will notdid not enter into any Contract of Sale for any Notes prior to the Time of Sale and (ii) that it will, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesNotes, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without deliver the Preliminary Prospectus to each investor to whom Notes are sold by it during the period prior written consent to the filing of the Transferorfinal Prospectus (as notified to such Underwriter by the Transferor or by the Bank), which delivery shall be prior to the applicable time of any such Contract of Sale with respect to such investor.
(f) Each In the event the Bank, the Transferor or any Underwriter becomes aware that, as of the Time of Sale, any Time of Sale Information contains or contained any untrue statement of material fact or omits or omitted to state any material fact necessary in order to make the statements contained therein in light of the circumstances under which they were made, not misleading (“Defective Information”), such Underwriter, severally the Bank or the Transferor, as applicable, shall promptly notify the Representatives and, in the case of any Underwriter giving such notice, the Transferor, of such untrue statement or omission no later than one Business Day after discovery and not jointlythe Transferor shall prepare and deliver to the Underwriters a Corrected Prospectus. Each Underwriter shall deliver such Corrected Prospectus to any person with whom a Contract of Sale was entered into based on such Defective Information, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver such Underwriter shall provide any such person with adequate disclosure of the Certificates person’s rights under the existing Contract of Sale and a meaningful ability to elect to terminate or distribute not terminate the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus prior Contract of Sale and to elect to enter into or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best not enter into a new Contract of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations Sale based on the Transferor except as information set forth hereinin the Corrected Prospectus.
(g) Each Underwriter, severally and not jointly, represents, warrants represents and agrees that it that, (ia) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offereddelivered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in deliver without the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) prior written consent of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amendedBank, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information to a Hired NRSRO or other nationally recognized statistical rating organization and (as defined belowb) to it has not participated, and will not participate without the prior written consent of the Bank, in any oral communication regarding Rating Agency Information with any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO, such Underwriter is authorized to inform such Rating Agency Hired NRSRO that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency Hired NRSRO to the TransferorBank, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the CertificatesNotes, including information about the characteristics of the Receivables and the legal structure of the CertificatesNotes, or and (b) undertaking credit rating surveillance on the CertificatesNotes, including information about the characteristics and performance of the Receivables, in each case as contemplated by Rule 17g5(a)(3)(iii)(C).
Appears in 1 contract
Samples: Underwriting Agreement (First National Funding LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Time of Sale Information and the Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(ea) Each Underwriter, severally and not jointly, represents, warrants and agrees with the Depositor and the Sponsor that it will not, at if any such time that such Underwriter is acting as an “underwriter” (as defined Notes are offered in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.United Kingdom:
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and it will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000 (the “FSMA”)) received by it in connection with the issue or sale of any Certificates of the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuing Entity; and
(ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.
(hb) Each Underwriter, severally and not jointly, represents, warrants and agrees with the Depositor and the Sponsor that if any Notes are offered in the European Economic Area that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in an offer of Notes which are the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) subject of the following: offering contemplated by the Prospectus Supplement to the public in any country that is a member of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each, a “Relevant Member State”) other than:
(i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not to any legal entity which is a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriterand amendments thereto, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafterincluding Directive 2010/73/EU, to the extent applicableimplemented in the Relevant Member State), so long as it is acting as an and includes any relevant implementing measure in the Relevant Member State (the “underwriter” Prospectus Directive”);
(ii) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of Directive 2010/73/EU, 150, natural or legal persons (other than qualified investors as defined in Section 2(a)(11the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the relevant underwriter or underwriters nominated by the Issuing Entity for any such offer; or
(iii) in any other circumstances falling within Article 3(2) of the Act with respect to Prospectus Directive; provided that no such offer of Notes shall require the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency Issuing Entity or any other “nationally recognized statistical rating organization” (within the meaning underwriter to publish a prospectus pursuant to Article 3 of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency Prospectus Directive or any other “nationally recognized statistical rating organization” (within the meaning supplement a prospectus pursuant to Article 16 of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesProspective Directive.
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Offered Securities for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and you will not offer, sell or otherwise make available distribute the Offered Securities (except for the sale thereof in exempt transactions) in any Certificates to any retail investor state in which the EEA. For Offered Securities are not exempt from registration under “blue sky” or state securities laws (except where the purposes of this provision, the expression Offered Securities will have been qualified for offering and sale at your direction under such “retail investorblue sky” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amendedstate securities laws).
(ib) Each Underwriter, severally It is understood that each Underwriter may prepare and not jointly, covenants with the Bank provide to prospective investors certain “Computational Materials” and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriterABS Term Sheets” (as defined in Section 2(a)(113(b) (vii) below) in connection with the offering of the Act with respect Offered Securities, subject to the Certificates, it following conditions:
(ai) will not deliver any Rating Information All Computational Materials and ABS Term Sheets provided by an Underwriter to prospective investors that are required to be filed pursuant to the “SEC No-Action Letters” (as defined in Section 3(b) (vii) below) shall bear a legend on each page including the following statement: “THE INFORMATION CONTAINED HEREIN HAS BEEN PROVIDED BY [UNDERWRITER]. NEITHER THE ISSUER OF THE SECURITIES NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION HEREIN. THE INFORMATION HEREIN IS PRELIMINARY, AND WILL BE SUPERSEDED BY THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.” In the case of Collateral Term Sheets (as defined in the SEC No-Action Letters), such legend shall also include the following statement: “THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE DESCRIPTION OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS SUPPLEMENT RELATING TO THE SECURITIES AND SUPERSEDES ALL INFORMATION CONTAINED IN ANY COLLATERAL TERM SHEETS RELATING TO THE MORTGAGE POOL PREVIOUSLY PROVIDED BY [UNDERWRITER].” Notwithstanding the foregoing, this subsection (i) will be satisfied if all Computational Materials and ABS Term Sheets referred to therein bear a legend in a form previously approved in writing by the Company.
(ii) Any [Computational Materials and] ABS Term Sheets are subject to the review by and approval of the Company prior to their distribution to any Rating Agency or any other “nationally recognized statistical rating organization” prospective investors and a copy of such [Computational Materials and] ABS Term Sheets as are delivered to prospective investors shall, in addition to the foregoing delivery requirements, be delivered to the Company simultaneously with delivery to prospective investors.
(within iii) Each Underwriter shall provide to the meaning Company, for filing on Form 8-K as provided in Section 5(p), copies (in such format as required by the Company) of all Computational Materials and ABS Term Sheets prepared by it that are required to be filed with the Commission pursuant to the SEC No-Action Letters. An Underwriter may provide copies of the Exchange Actforegoing in a consolidated or aggregate form that includes all information required to be filed. All Computational Materials and ABS Term Sheets described in this Section 3(b)(iii) must be provided to the Company not later than 9:00 a.m. New York time one business day before filing thereof is required pursuant to the terms of the SEC No-Action Letters. Each Underwriter severally agrees that it will not provide to any investor or prospective investor in the Offered Securities any Computational Materials or ABS Term Sheets on or after the day on which Computational Materials and ABS Term Sheets are required to be provided to the Company pursuant to this Section 3(b) (other than copies of Computational Materials or ABS Term Sheets previously submitted to the Company in accordance with this Section 3(b) for filing pursuant to Section 5(p)), unless such Computational Materials or ABS Term Sheets are preceded or accompanied by the delivery of a Prospectus to such investor or prospective investor.
(iv) All information included in the Computational Materials and (b) will not participate ABS Term Sheets shall be generated based on substantially the same methodology and assumptions that are used to generate the information in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communicationProspectus Supplement as set forth therein; provided, however, that the Computational Materials and ABS Term Sheets may include information based on alternative methodologies or assumptions if an specified therein. If any Computational Materials or ABS Term Sheets that are required to be filed were based on assumptions with respect to the underlying assets that are incorrect, that differ from the final Pool Information in any material respect or on Security structuring terms that were revised in any material respect prior to the printing of the Prospectus, the Underwriter receives an oral communication from responsible therefore shall prepare revised Computational Materials or ABS Term Sheets, as the case may be, based on the final Pool Information and structuring assumptions, circulate such revised Computational Materials and ABS Term Sheets to all recipients of the preliminary versions thereof that indicated orally to such Underwriter they would purchase all or any portion of the Securities, and include such revised Computational Materials and ABS Term Sheets (marked, “as revised”) in the materials delivered to the Company pursuant to Section 3(b)(iii).
(v) The Company shall not be obligated to file any Computational Materials or ABS Term Sheets that (A) in the reasonable determination of the Company [and the respective Underwriter] are not required to be filed pursuant to the SEC No-Action Letters or (B) have been determined to contain any material error or omission, provided that, at the request of the respective Underwriter, the Company will file Computational Materials or ABS Term Sheets that contain a Rating Agencymaterial error or omission if clearly marked “superseded by materials dated [date]” and accompanied by corrected Computational Materials or ABS Term Sheets that are marked “material previously dated [date], as corrected”. In the event that at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act, any Computational Materials or ABS Term Sheets are determined, in the reasonable judgment of the Company or the respective Underwriter, to contain a material error or omission, such Underwriter shall prepare a corrected version of such Computational Materials or ABS Term Sheets, shall circulate such corrected version of such Computational Materials and ABS Term Sheets to all recipients of the prior versions thereof that either indicated orally to such Underwriter they would purchase all or any portion of the Offered Securities, or actually purchased all or any portion thereof, and shall deliver copies of such corrected Computational Materials and ABS Term Sheets (marked, “as corrected”) to the Company for filing with the Commission in a subsequent Form 8-K submission (subject to the Company’s obtaining an accountant’s comfort letter in respect of such corrected Computational Materials and ABS Term Sheets, which shall be at the expense of such Underwriter) provided that if any such letter is authorized required to inform be revised solely because of a change in the Pool Information, any additional expenses for such Rating Agency letter resulting from the change in Pool Information shall be paid by the Company.
(vi) If the Underwriter does not provide any Computational Materials and ABS Term Sheets to the Company pursuant to Section 3(b)(iii), such Underwriter shall be deemed to have represented, as of the Closing Time, that it will respond did not provide any prospective investors with any information in written or electronic form in connection with the offering of the Offered Securities that is required to be filed with the oral communication Commission in accordance with the SEC No-Action Letters, and such Underwriter shall provide the Company with a designated representative from the Bank or the Transferor or refer such Rating Agency certification to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance that effect on the Certificates, including information about Closing Time.
(vii) The following terms related to Computational Materials and ABS Term Sheets have the characteristics and performance of the Receivables.respective meanings assigned to them in this Section 3(b)(vii):
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Time of Sale Information and the Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(ea) Each Underwriter, severally and not jointly, represents, warrants and agrees with the Depositor and the Sponsor that it will not, at if any such time that such Underwriter is acting as an “underwriter” (as defined Notes are offered in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.United Kingdom:
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and it will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Certificates of the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuing Entity or the Depositor; and
(ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.
(hb) Each Underwriter, severally and not jointly, represents, warrants and agrees with the Depositor and the Sponsor that if any Notes are offered in the European Economic Area, it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in an offer of Notes which are the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) subject of the following: offering contemplated by the Prospectus Supplement to the public in any country that is a member of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each, a “Relevant Member State”) other than:
(i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not to any legal entity which is a qualified investor as defined in Directive 2003/71/EC (as amendedand amendments thereto, including by Directive 2010/73/EU and including any relevant implementing measure in the Relevant Member State) (the “Prospectus Directive”).;
(iii) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on to fewer than 150 natural or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” legal persons (other than qualified investors as defined in Section 2(a)(11the Prospectus Directive), subject to obtaining the prior consent of the relevant underwriter or underwriters nominated by the Issuing Entity for any such offer; or
(iii) in any other circumstances falling within Article 3(2) of the Act with respect Prospectus Directive; provided that no such offer of Notes shall require the Issuing Entity, the Depositor or any underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this Section 4(b), an “offer of Notes to the Certificates, it (a) will not deliver any Rating Information (as defined below) public” in relation to any Rating Agency or Notes in any other “nationally recognized statistical rating organization” (within Relevant Member State means the meaning communication in any form and by any means of sufficient information on the terms of the Exchange Act), offer and (b) will not participate in any oral communication of Rating Information with any Rating Agency the Notes to be offered so as to enable an investor to decide to purchase or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond subscribe to the oral communication with a designated representative from Notes, as the Bank or same may be varied in that Relevant Member State by any measure implementing the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesProspectus Directive in that Relevant Member State.
Appears in 1 contract
Samples: Underwriting Agreement (Mercedes-Benz Auto Lease Trust 2015-B)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Prospectus, the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates Notes authorized or approved by the Transferor Bank (the each, a “Permitted Additional InformationRoad Show”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees agrees
(i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and but not jointly, represents, warrants represents and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.that,
(ha) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offereddelivered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in deliver without the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) prior written consent of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amendedTransferor or BBD, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or BBD, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Bank Transferor or BBD or refer such Hired NRSRO or other nationally recognized statistical rating organization to the Transferor or refer such Rating Agency to the TransferorBBD, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the CertificatesUnderwritten Notes, including information about the characteristics of the Receivables and the legal structure of the CertificatesUnderwritten Notes, or and (b) undertaking credit rating surveillance on the CertificatesUnderwritten Notes, including information about the characteristics and performance of the Receivables, in each case as contemplated by Rule 17g5(a)(3)(iii)(C).
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwritercovenants, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.Company and AHFC that:
(fa) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (activity, within the meaning of Section 21 of the Financial Services and Markets Axx 0000, as amended (the “FSMA) ”), received by it in connection with the issue of the Notes or sale of any Certificates Underwritten Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Underwritten Notes in, from or otherwise involving the United Kingdom; and
(hb) Each Underwriterin relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, severally a “Relevant Member State”), with effect from and not jointly, represents, warrants and agrees including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates an offer of Underwritten Notes to any retail investor the public in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the followingthat Relevant Member State other than: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not to any legal entity which is a qualified investor as defined in the Prospectus Directive; (ii) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive; or (iii) in any other circumstances which do not require the publication by the Trust of a prospectus pursuant to Article 3(2) of the Prospectus Directive; provided that no such offer of Underwritten Notes shall require the Trust or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For purposes of Section 4(b) of this Agreement, (i) the foregoing, the expression “ an offer of Underwritten Notes to the public” in relation to any notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Underwritten Notes to be offered so as to enable an investor to decide to purchase or subscribe the Underwritten Notes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, and (ii) the expression “Prospectus Directive” means Directive 2003/71/EC (as amended).
(i) Each Underwriterand amendments thereto, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Actincluding Directive 2010/73/EU), and (b) will not participate includes any relevant implementing measure in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesRelevant Member State.
Appears in 1 contract
Samples: Underwriting Agreement (Honda Auto Receivables 2015-3 Owner Trust)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Class A Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor Transferors (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Class A Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the TransferorTransferors; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Class A Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Class A Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the TransferorTransferors) it will deliver the Preliminary Prospectus to each investor to whom it sells Class A Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Class A Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor Transferors expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferors to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Class A Certificates, transfer, deposit or otherwise convey any Class A Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Class A Certificates without the prior written consent of the TransferorTransferors.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Class A Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Class A Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor Transferors except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000Act 2000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each With respect to each Member State of the European Economic Area which has implemented the Prospectus Derivative (each a “Relevant Member State”), each Underwriter, severally and not jointly, represents, warrants and agrees that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any an offer of Certificates to the public in that Relevant Member State except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates to the public in that Relevant Member State (i) at any retail investor time to any legal entity which is a “qualified investor” as defined in the EEAProspectus Directive; (ii) at any time to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of Directive 2010/73/EU, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive); or (iii) at any time in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of Certificates shall require the Trust or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, (A) the expression “retail investoroffer any Certificates to the public” in relation to any Certificates in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe the Certificates, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, (B) the expression “Prospectus Directive” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended)and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in the Relevant Member State, (C) the expression “2010 PD Amending Directive” means Directive 2010/73/EU, and (D) the countries comprising the “European Economic Area” are Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
(i) Each Underwriter, severally and not jointly, covenants with the Bank Banks and the Transferor Transferors that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Class A Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the a Bank or the a Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the a Bank or the a Transferor or refer such Rating Agency to the TransferorTransferors, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, that after the Effective Date, the Underwriters propose each Underwriter proposes to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Each Underwriter shall comply with all applicable laws and regulations in connection with its use of Free Writing Prospectuses, including but not limited to Rules 164 and 433 of the Act.
(c) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus Additional Information and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or other information approved by the Transferor (the “Permitted Additional Information”)Transferor, each Underwriter severally and not jointly represents, warrants and covenants agrees with the Transferor and the Bank that it has not prepared, made, used, prepared, authorized, approved, disseminated approved or referred to and will not prepare, make, use, prepare, authorize, approve, disseminate approve or refer to any “"written communication” " (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesNotes, including including, but not limited to to, any “"ABS informational and computational materials” " as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained Act. Notwithstanding the prior written approval of foregoing, the Transferor; provided, however, Transferor agrees that (x) each Underwriter the Underwriters may prepare and convey disseminate information on Bloomberg to one or more of its potential prospective investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: relating solely to (i) information contemplated by of the type identified in Rule 134 under of the Act and included or to be Act, (ii) information included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (iiiii) columns or other entries showing the status of allocations and subscriptions of the subscriptionsNotes, the expected pricing parameters, parameters of the Notes and the yields and weighted average life or the trade date lives of the Certificates Notes, and (iv) information constituting final terms of the Notes within the meaning of Rule 433(d)(5)(ii) under the Act (each such communication, an “"Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations "); provided that in the case of sale.
(c) Each Underwriter severally and not jointly represents and agrees the foregoing clauses (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and through (ii) thativ), during the period prior to the filing of other than the final pricing terms, such Underwriter Free Writing Prospectus (as notified would not be required to be filed with the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investorCommission.
(d) Each Underwriter severally and not jointly represents, warrants and agrees with the Transferor, the Issuer and the Bank that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificatesthe Notes, include any untrue statement of a material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that which was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate written information furnished to the related Underwriter by the Transferor Transferor, the Issuer or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferor, the Issuer or the Bank to the related Underwriter reasonably within a reasonable period of time prior to the time of first use of such Underwriter Free Writing Prospectus; and;
(ii) if required by Rule 433(c)(2)(i) of the Act, each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations Rule 433(c)(2)(i) of the Act, and shall otherwise conform to any requirements for “"free writing prospectuses” " under the Act; and
(iii) each Underwriter Free Writing Prospectus prepared by it shall be delivered to the Transferor no later than the date of first use and, unless otherwise agreed to by the Transferor and the related Underwriter, such delivery shall occur no later than the close of business for the Bank (Central Time) on the date of first use; provided, however, if the date of first use is not a Business Day, such delivery shall occur no later than the close of business for the Bank (Central Time) on the first Business Day after such date of first use.
(e) Each Underwriter, severally and not jointly, represents, warrants Underwriter represents and agrees (i) that it will notdid not enter into any Contract of Sale for any Notes prior to the Time of Sale and (ii) that it will, at any such time that such Underwriter is acting as an “"underwriter” " (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesNotes, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without deliver to each investor to whom Notes are sold by it during the period prior written consent to the filing of the Transferorfinal Prospectus (as notified to such Underwriter by the Transferor or by the Bank), prior to the applicable time of any such Contract of Sale with respect to such investor, the Preliminary Prospectus.
(f) Each In the event the Bank, the Transferor or any Underwriter becomes aware that, as of the Time of Sale, any Time of Sale Information contains or contained any untrue statement of material fact or omits or omitted to state any material fact necessary in order to make the statements contained therein in light of the circumstances under which they were made, not misleading ("Defective Information"), such Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates Transferor, as applicable, shall promptly notify the Representatives and, in the case of any Underwriter giving such communication; providednotice, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond of such untrue statement or omission no later than one Business Day after discovery and the Transferor shall prepare and deliver to the oral communicationUnderwriters a Corrected Prospectus. “Rating Each Underwriter shall deliver such Corrected Prospectus to any person with whom a Contract of Sale was entered into based on such Defective Information” means , and such Underwriter shall provide any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics such person with adequate disclosure of the Receivables person's rights under the existing Contract of Sale and a meaningful ability to elect to terminate or not terminate the legal structure prior Contract of the Certificates, Sale and to elect to enter into or (b) undertaking credit rating surveillance not enter into a new Contract of Sale based on the Certificates, including information about set forth in the characteristics and performance of the ReceivablesCorrected Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (First National Master Note Trust)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Final Prospectus.
(b) Other than Each Underwriter severally covenants and agrees with the Company as to itself that:
(i) Prior to entering into any Contract of Sale, the Underwriter shall convey the Preliminary Prospectus, Prospectus to each prospective investor. The Underwriter shall keep sufficient records to document its conveyance of the Preliminary Prospectus to each potential investor prior to the related Contract of Sale.
(ii) Unless preceded or accompanied by a prospectus satisfying the Ratings requirements of Section 10(a) of the Securities Act, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Notes, unless such written communication (1) is made in reliance on Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act or (3) is a Free Writing Prospectus, .
(iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating An Underwriter may convey a Preliminary Term Sheet to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred a potential investor prior to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation entering into a Contract of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless Sale with such Underwriter has obtained the prior written approval of the Transferorinvestor; provided, however, that (x) each such Underwriter may prepare and convey to one or more shall not enter into a Contract of its potential investors one or more “written communications” (as defined in Rule 405 under Sale with such investor unless the Act) containing no more than the following: Underwriter has complied with paragraph (i) information contemplated by Rule 134 under the Act and included or above prior to be included in the Preliminary Prospectussuch Contract of Sale, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each such Underwriter will be permitted shall deliver a copy of the proposed Preliminary Term Sheet to provide confirmations of salethe Depositor and its counsel prior to the anticipated first use and shall not convey any such Preliminary Term Sheet to which the Depositor or its counsel reasonably objects.
(civ) Each An Underwriter severally and not jointly represents and agrees may convey Computational Materials (ix) that it did not enter into any contract of sale for any Certificates to a potential investor prior to the Time entering into a Contract of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for with such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no (A) such Underwriter makes shall not enter into a Contract of Sale with such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to investor unless the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance has complied with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it paragraph (i) has complied and will comply with all applicable provisions above prior to such Contract of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, Sale and (iiB) has only communicated or caused such Computational Materials shall not be disseminated in a manner reasonably designed to be communicated and will only communicate or cause lead to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communicationits broad unrestricted dissemination; provided, however, that if an Underwriter receives an oral communication from such Computational Materials are disseminated in a Rating Agencymanner reasonably designed to lead to its broad unrestricted dissemination, such Underwriter is authorized shall file with the Commission such Computational Materials, and (y) to inform an investor after a Contract of Sale, provided that the Underwriter has complied with paragraph (i) above in connection with such Rating Agency Contract of Sale. The Underwriter shall keep sufficient records of any conveyance of Computational Materials to potential or actual investors and shall maintain such records as required by the Rules and Regulations.
(v) If an Underwriter does not furnish a Free Writing Prospectus to the Depositor's counsel prior to the scheduled print date of the Final Prospectus, such Underwriter will be deemed to have represented that it will respond did not convey any Free Writing Prospectus to any potential investor.
(vi) Each Free Writing Prospectus shall contain legends that are substantially similar to the oral communication following: The issuer has filed a registration statement (including a prospectus) with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency SEC for the purpose of (a) determining offering to which this free writing prospectus relates. Before you invest, you should read the initial credit rating prospectus in that registration statement and other documents the issuer has filed with the SEC for the Certificates, including more complete information about the issuer and this offering. You may get these documents for free by visiting XXXXX on the SEC Web site at XXX.XXX.XXX. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free 1-8[zz-zzz-zzzz]. This free writing prospectus does not contain all information that is required to be included in the base prospectus and the prospectus supplement. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. The asset-backed securities referred to in this free writing prospectus are being offered when, as and if issued. In particular, you are advised that asset-backed securities, and the asset pools backing them, are subject to modification or revision (including, among other things, the possibility that one or more classes of securities may be split, combined or eliminated), at any time prior to issuance or availability of a final prospectus. As a result, you may commit to purchase securities that have characteristics that may change, and you are advised that all or a portion of the Receivables securities may not be issued that have the characteristics described in this free writing prospectus. Our obligation to sell securities to you is conditioned on the securities having the characteristics described in this free writing prospectus. If that condition is not satisfied, we will notify you, and neither the legal structure issuer nor [the] [any] underwriter will have any obligation to you to deliver all or any portion of the Certificatessecurities which you have committed to purchase, or (b) undertaking credit rating surveillance on and there will be no liability between us as a consequence of the Certificates, including non-delivery. This free writing prospectus is being delivered to you solely to provide you with information about the characteristics and performance offering of the Receivablesasset-backed securities referred to in this free writing prospectus and to solicit an indication of your interest in purchasing such securities, when, as and if issued. Any such indication of interest will not constitute a contractual commitment by you to purchase any of the securities.
(vii) Any Computational Materials shall include legends, in addition to those specified in paragraph (vi) above, substantially similar to the following: The information in this free writing prospectus may be based on preliminary assumptions about the pool assets and the structure. Any such assumptions are subject to change. The information in this free writing prospectus may reflect parameters, metrics or scenarios specifically requested by you. If so, prior to the time of your commitment to purchase, you should request updated information based on any parameters, metrics or scenarios specifically required by you. Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented in this free writing prospectus, although that information may be based in part on loan level data provided by the issuer or its affiliates.
(viii) Each Underwriter severally agrees to retain all Free Writing Prospectuses that it has used and that are not required to be filed pursuant to this Section 4 for a period of three years following the initial bona fide offering of the Underwritten Notes.
(c) The following terms shall have the meanings set forth below, unless the context clearly indicates otherwise: COMPUTATIONAL MATERIALS: Any Free Writing Prospectus prepared by the Underwriter that contains only (i) information of the type specified in paragraph (5) of the definition of ABS Informational and Computational Materials in Item 1101(a) of Regulation AB or (ii) information that is not Issuer Information.
Appears in 1 contract
Samples: Underwriting Agreement (New Century Mortgage Securities Inc)
Offering by Underwriters. (a) It is understood that, The Issuers understand that the Underwriters intend to make a public offering of the Securities as soon after the Effective Dateeffectiveness of this Agreement as in the judgment of the Representative is advisable, the Underwriters propose and initially to offer the Certificates for sale to Securities on the public as terms set forth in the Preliminary ProspectusTime of Sale Information. The Issuers acknowledge and agrees that the Underwriters may offer and sell Securities to or through any Affiliate of an Underwriter and that any such Affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, represents and warrants to and agrees that it with the Issuers and the Guarantors that:
(i) It has not and will notnot use, at authorize use of, refer to, or participate in the planning for use of, any such time that such Underwriter is acting as an “underwriter” (free writing prospectus”, as defined in Rule 405 under the Act (which term includes use of any written information furnished to the Commission by the Issuers and not incorporated by reference into the Registration Statement and any press release issued by the Issuers) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Schedule II or prepared pursuant to Section 2(a)(113(c) or Section 4(c) above (including any xxxxxxxxxx xxxx xxxx), xx (xxx) any free writing prospectus prepared by such Underwriter and approved by the Issuers in advance in writing (each such free writing prospectus referred to in clause (i) or (iii), an “Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Schedule II hereto without the consent of the ActIssuers.
(ii) It is not subject to any pending proceeding under Section 8A of the Act with respect to the Certificates, transfer, deposit or otherwise convey offering (and will promptly notify the Issuers if any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without proceeding against it is initiated during the prior written consent of the TransferorProspectus Delivery Period (as defined below)).
(fiii) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any In relation to each Member State of the Certificates or distribute European Economic Area which has implemented the ProspectusProspectus Directive (each, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the a “FSMARelevant Member State”), with respect to anything done by it effect from and including the date on which the Prospectus Directive is implemented in relation to any Certificates inthat Relevant Member State (the “Relevant Implementation Date”), from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offermake an offer of Securities to the public in that Relevant Member State, sell or otherwise make available any Certificates other than:
(A) to any retail legal entity which is a qualified investor as defined in the EEAProspectus Directive
(B) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the Representative for any such offer; or
(C) in any other circumstances which do not require the publication of a prospectus by the Issuers pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “retail investoroffer of notes to the public” in relation to any notes in any Relevant Member State means a person who is one (the communication in any form and by any means of sufficient information on the terms for the offer and the shares to be offered so as to enable an investor to decide to purchase or more) of subscribe the following: (i) a retail client Notes, as defined the same may be varied in point (11) of Article 4(1) of that Relevant Member State by any measure implementing the Prospectus Directive 2014/65/EU (as amendedin that Relevant Member State, “MiFID II”); (ii) a customer within the meaning of expression Prospectus Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in means Directive 2003/71/EC (as amended)and amendments thereto, including the PD 2010 Amending Directive to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in each Relevant Member State, and the expression 2010 PD Amending Directive means Directive 2010/73/EU.
(iiv) Each Underwriter, severally and not jointly, covenants with It will only distribute the Bank and the Transferor that on Prospectus or prior any other material in relation to the Closing Date, and thereafter, Securities to persons in the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11United Kingdom that are qualified investors within the meaning of Article 2(1)(e) of the Act Prospective Directive that also (i) have professional experience in matters relating to investments falling within Article 19(5) of the Financial Services and Markets Xxx 0000 (Financial Promotion) Order 2005, as amended, or the Order, (ii) who fall within Article 49(2)(a) to (d) of the Order or (iii) to whom it may otherwise lawfully be communicated.
(v) It will not offer or sell any of the Securities or take any other action with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within Securities in Ireland otherwise than in conformity with the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose provisions of (a) determining the initial credit rating for European Communities (Markets in Financial Instruments) Regulations 2007 (Nos. 1 to 3), including, without limitation, Regulations 7 and 152 thereof or any codes of conduct used in connection therewith and the Certificates, including information about the characteristics provisions of the Receivables and the legal structure of the CertificatesInvestor Compensation Xxx 0000, or (b) undertaking credit rating surveillance on the CertificatesCompanies Acts 1963 to 2013 or, including information about as applicable, the characteristics Companies Xxx 0000, the Central Bank Acts 1942 to 2014 and performance any code of conduct rules made under Section 117(1) of the ReceivablesCentral Bank Act 1989, (c) the Prospectus (Directive 2003/71/EC) Regulations 2005 and any rules issued under Section 51 of the Investment Funds, Companies and Miscellaneous Provisions Xxx 0000 or, as applicable, Section 1363 of the Companies Xxx 0000 by the Central Bank of Ireland and (d) the Market Abuse (Directive 2003/6/EC) Regulations 2005 and any rules issued under Section 34 of the Investment Funds, Companies and Miscellaneous Provisions Xxx 0000 or, as applicable, Section 1370 of the Companies Xxx 0000 by the Central Bank of Ireland.
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e1) Each Underwriter, severally and not jointly, represents, represents and warrants to and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of with the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.Issuer that:
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates Securities, in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.Issuer;
(hii) Each Underwriterit has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, severally from or otherwise involving the United Kingdom; and
(iii) in relation to each Member State of the European Economic Area (each, a “Relevant Member State”), with effect from and not jointly, represents, warrants and agrees including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not offered, sold or otherwise made available and will not offermake an offer to the public of any Securities which are the subject of the offering contemplated by this Agreement in that Relevant Member State, sell or otherwise except that it is permitted to have made and may make available an offer to the public in that Relevant Member State of any Certificates Securities at any time with effect from and including the Relevant Implementation Date under the following exemptions under the Prospectus Directive, if they have been implemented in that Relevant Member State:
(A) to any retail investor legal entities which are qualified investors as defined in the EEAProspectus Directive;
(B) to fewer than 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the Representatives for any such offer; or
(C) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of Securities shall require the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression an “retail investoroffer to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and any Securities to be offered so as to enable an investor to decide to purchase any Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(iand amendments thereto, including the 2010 PD Amending Directive) Each Underwriter, severally and not jointly, covenants with the Bank includes any relevant implementing measure in each Relevant Member State and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an expression “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information2010 PD Amending Directive” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesDirective 2010/73/EU.
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwritercovenants, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.Company and AHFC that:
(fa) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) it has complied only communicated or caused to be communicated and will comply with all applicable provisions only communicate or cause to be communicated any invitation or inducement to engage in investment activity, within the meaning of Section 21 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue of the Notes or sale of any Certificates Underwritten Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Underwritten Notes in, from or otherwise involving the United Kingdom; and
(hb) Each Underwriterin relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, severally a “Relevant Member State”), with effect from and not jointly, represents, warrants and agrees including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates an offer of Underwritten Notes to any retail investor the public in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the followingthat Relevant Member State other than: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not to any legal entity which is a qualified investor as defined in the Prospectus Directive; (ii) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive; or (iii) in any other circumstances which do not require the publication by the Trust of a prospectus pursuant to Article 3(2) of the Prospectus Directive; provided that no such offer of Underwritten Notes shall require the Trust or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For purposes of Section 4(b) of this Agreement, (i) the foregoing, the expression “ an offer of Underwritten Notes to the public” in relation to any notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Underwritten Notes to be offered so as to enable an investor to decide to purchase or subscribe the Underwritten Notes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, and (ii) the expression “Prospectus Directive” means Directive 2003/71/EC (as amended).
(i) Each Underwriterand amendments thereto, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Actincluding Directive 2010/73/EU), and (b) will not participate includes any relevant implementing measure in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesRelevant Member State.
Appears in 1 contract
Samples: Underwriting Agreement (Honda Auto Receivables 2015-2 Owner Trust)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Final Prospectus.
(b) Other than Each Underwriter severally covenants and agrees with the Company as to itself that:
(i) Prior to entering into any Contract of Sale, the Preliminary Prospectus, Underwriter shall convey the Pricing Free Writing Prospectus to each prospective investor.
(ii) Unless preceded or accompanied by a prospectus satisfying the Ratings requirements of Section 10(a) of the Securities Act or access thereto is made available pursuant to Rule 173 of the Securities Act, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Notes, unless such written communication (1) is made in reliance on Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act or (3) is a Free Writing Prospectus, .
(iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating An Underwriter may convey a Preliminary Term Sheet to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred a potential investor prior to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation entering into a Contract of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless Sale with such Underwriter has obtained the prior written approval of the Transferorinvestor; provided, however, that (x) each such Underwriter may prepare and convey to one or more shall not enter into a Contract of its potential investors one or more “written communications” (as defined in Rule 405 under Sale with such investor unless the Act) containing no more than the following: Underwriter has complied with paragraph (i) information contemplated by Rule 134 under the Act and included or above prior to be included in the Preliminary Prospectussuch Contract of Sale, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each such Underwriter will be permitted shall deliver a copy of the proposed Preliminary Term Sheet to provide confirmations of salethe Depositor and its counsel prior to the anticipated first use and shall not convey any such Preliminary Term Sheet to which the Depositor or its counsel reasonably objects.
(civ) Each An Underwriter severally and not jointly represents and agrees may convey Computational Materials (ix) that it did not enter into any contract of sale for any Certificates to a potential investor prior to the Time entering into a Contract of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for with such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no (A) such Underwriter makes shall not enter into a Contract of Sale with such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to investor unless the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance has complied with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it paragraph (i) has complied and will comply with all applicable provisions above prior to such Contract of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, Sale and (iiB) has only communicated or caused such Computational Materials shall not be disseminated in a manner reasonably designed to be communicated and will only communicate or cause lead to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communicationits broad unrestricted dissemination; provided, however, that if an Underwriter receives an oral communication from such Computational Materials are disseminated in a Rating Agencymanner reasonably designed to lead to its broad unrestricted dissemination, such Underwriter is authorized shall file with the Commission such Computational Materials, and (y) to inform an investor after a Contract of Sale, provided that the Underwriter has complied with paragraph (i) above in connection with such Rating Agency Contract of Sale. The Underwriter shall keep sufficient records of any conveyance of Computational Materials to potential or actual investors and shall maintain such records as required by the Rules and Regulations.
(v) If an Underwriter does not furnish a Free Writing Prospectus to the Depositor’s counsel prior to the scheduled print date of the Final Prospectus, such Underwriter will be deemed to have represented that it will respond did not convey any Free Writing Prospectus to any potential investor.
(vi) Each Free Writing Prospectus shall contain legends that are substantially similar to the oral communication following: The depositor has filed a registration statement (including a prospectus) with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency SEC for the purpose of (a) determining offering to which this free writing prospectus relates. Before you invest, you should read the initial credit rating prospectus in that registration statement and other documents the depositor has filed with the SEC for the Certificates, including more complete information about the issuer and this offering. You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free 1-8[zz-zzz-zzzz]. This free writing prospectus does not contain all information that is required to be included in the base prospectus and the prospectus supplement. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. The asset-backed securities referred to in this free writing prospectus are being offered when, as and if issued. In particular, you are advised that asset-backed securities, and the asset pools backing them, are subject to modification or revision (including, among other things, the possibility that one or more classes of securities may be split, combined or eliminated), at any time prior to issuance or availability of a final prospectus. As a result, you may commit to purchase securities that have characteristics that may change, and you are advised that all or a portion of the Receivables securities may not be issued that have the characteristics described in this free writing prospectus. Our obligation to sell securities to you is conditioned on the securities having the characteristics described in this free writing prospectus. If that condition is not satisfied, we will notify you, and neither the legal structure issuer nor [the] [any] underwriter will have any obligation to you to deliver all or any portion of the Certificatessecurities which you have committed to purchase, or (b) undertaking credit rating surveillance on and there will be no liability between us as a consequence of the Certificates, including non-delivery. This free writing prospectus is being delivered to you solely to provide you with information about the characteristics and performance offering of the Receivablesasset-backed securities referred to in this free writing prospectus and to solicit an indication of your interest in purchasing such securities, when, as and if issued. Any such indication of interest will not constitute a contractual commitment by you to purchase any of the securities.
(vii) Any Computational Materials shall include legends, in addition to those specified in paragraph (vi) above, substantially similar to the following: The information in this free writing prospectus may be based on preliminary assumptions about the pool assets and the structure. Any such assumptions are subject to change. The information in this free writing prospectus may reflect parameters, metrics or scenarios specifically requested by you. If so, prior to the time of your commitment to purchase, you should request updated information based on any parameters, metrics or scenarios specifically required by you. Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented in this free writing prospectus, although that information may be based in part on loan level data provided by the issuer or its affiliates.
(viii) Each Underwriter severally agrees to retain all Free Writing Prospectuses that it has used and that are not filed pursuant to this Section 4 for a period of three years following the initial bona fide offering of the Underwritten Notes.
(c) The following terms shall have the meanings set forth below, unless the context clearly indicates otherwise:
Appears in 1 contract
Samples: Underwriting Agreement (New Century Home Equity Loan Trust 2006-1)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates Notes authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesNotes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Notes prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Notes at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesNotes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesNotes, transfer, deposit or otherwise convey any Certificates Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Notes without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Notes or distribute the Prospectus, Preliminary Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank TRS and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the CertificatesNotes, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank TRS or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank TRS or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the CertificatesNotes, including information about the characteristics of the Receivables and the legal structure of the CertificatesNotes, or (b) undertaking credit rating surveillance on the CertificatesNotes, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp VIII LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Prospectus, the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”)Fees Free Writing Prospectus, each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has, (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Axx 0000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer or the Transferor, and (ii) complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom.
(h) Each With respect to each Member State of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each a “Relevant Member State”), each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates an offer of notes which are the subject of the offering contemplated by the Prospectus to the public in that Relevant Member State other than: (i) to any retail investor legal entity which is a “qualified investor” as defined in the EEAProspectus Directive; (ii) to fewer than 150 natural or legal persons per Relevant Member State (other than qualified investors as defined in the Prospectus Directive), and in any such instance only with the prior written consent of the relevant underwriter or underwriters nominated by the Issuer or if no such underwriter has been nominated the prior written consent of the Issuer; or (iii) in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of notes shall require the Issuer, the Transferor or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression “retail investoroffer any notes to the public” in relation to any notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the notes to be offered so as to enable an investor to decide to purchase or subscribe the notes, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State. The expression “Prospectus Directive” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended, including by Directive 2010/73/EU), and includes any relevant implementing measure in the Relevant Member State. The countries comprising the ‘‘European Economic Area’’ are Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
(i) Each Underwriter, severally and but not jointly, covenants with the Bank represents and the Transferor that on or prior to the Closing Dateagrees that, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) it has not delivered, and will not deliver without the prior written consent of the Transferor or the Bank, any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or the Bank, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Transferor or the Bank or refer such Hired NRSRO or other nationally recognized statistical rating organization to the Transferor or refer such Rating Agency to the TransferorBank, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.Hired NRSRO that could reasonably be determined to be relevant to
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Time of Sale Information and the Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) [Each Underwriter, severally and not jointly, representsrepresents and warrants to, warrants and agrees with, the Depositor:
(i) in relation to each member state of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State, it has not made and will not, not make an offer of the Notes to the public in that Relevant Member State other than:
(A) at any such time that such Underwriter is acting as an to legal entities which are “underwriterqualified investors” (as defined in Section 2(a)(11the Prospectus Directive;
(B) at any time to fewer than 100 or, if the Relevant Member State has implemented the relevant provisions of the 2010 PD Amending Directive, 150 natural or legal persons (other than “qualified investors” as defined in the Prospectus Directive) subject to obtaining the prior consent of the relevant Underwriter or Underwriters nominated by the Issuing Entity for any such offer; or
(C) at any time in any other circumstances falling within Article 3(2) of the ActProspectus Directive; provided that, no such offer of the Notes referred to in (A) with respect through (C) above shall require the Issuing Entity or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this Section 4(b), (x) the expression an “offer of the Notes to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it public” in relation to any Certificates inNotes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe to the Notes, from or otherwise involving as the United Kingdomsame may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, (y) the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including by the 2010 PD Amending Directive to the extent implemented in each Relevant Member State) and includes any relevant implementing measure in each Relevant Member State, and (z) the expression “2010 PD Amending Directive” means Directive 2010/73/EU.
(ii) It has only communicated or caused to be communicated and it will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the United Kingdom Financial Services and Markets Xxx 0000 (“FSMA”)) received by it in connection with the issue or sale of any Certificates of the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuing Entity.
(hiii) Each Underwriter, severally and not jointly, represents, warrants and agrees that it It has not offered, sold or otherwise made available complied and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) comply with all applicable provisions of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act FSMA with respect to the Certificates, anything done by it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond relation to the oral communication with a designated representative Notes in, from or otherwise involving the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesUnited Kingdom.]
Appears in 1 contract
Samples: Underwriting Agreement (Daimler Retail Receivables LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Time of Sale Information and the Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(ea) Each Underwriter, severally and not jointly, represents, warrants and agrees with the Depositor and the Sponsor that it will not, at if any such time that such Underwriter is acting as an “underwriter” (as defined Notes are offered in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.United Kingdom:
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and it will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Certificates of the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuing Entity; and
(ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.
(hb) Each Underwriter, severally and not jointly, represents, warrants and agrees with the Depositor and the Sponsor that if any Notes are offered in the European Economic Area that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in an offer of Notes which are the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) subject of the following: offering contemplated by the Prospectus Supplement to the public in any country that is a member of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each, a “Relevant Member State”) other than:
(i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not to any legal entity which is a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriterand amendments thereto, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafterincluding Directive 2010/73/EU, to the extent applicableimplemented in the Relevant Member State), so long as it is acting as an and includes any relevant implementing measure in the Relevant Member State (the “underwriter” Prospectus Directive”);
(ii) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of Directive 2010/73/EU, 150, natural or legal persons (other than qualified investors as defined in Section 2(a)(11the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the relevant underwriter or underwriters nominated by the Issuing Entity for any such offer; or
(iii) in any other circumstances falling within Article 3(2) of the Act with respect to Prospectus Directive; provided that no such offer of Notes shall require the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency Issuing Entity or any other “nationally recognized statistical rating organization” (within the meaning underwriter to publish a prospectus pursuant to Article 3 of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency Prospectus Directive or any other “nationally recognized statistical rating organization” (within the meaning supplement a prospectus pursuant to Article 16 of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesProspective Directive.
Appears in 1 contract
Samples: Underwriting Agreement (Mercedes-Benz Auto Lease Trust 2014-A)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Final Prospectus.
(b) Other than Each Underwriter severally covenants and agrees with the Company as to itself that:
(i) Prior to entering into any Contract of Sale, the Preliminary Prospectus, Underwriter shall convey the Pricing Free Writing Prospectus to each prospective investor.
(ii) Unless preceded or accompanied by a prospectus satisfying the Ratings requirements of Section 10(a) of the Securities Act or access thereto is made available pursuant to Rule 173 of the Securities Act, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Notes, unless such written communication (1) is made in reliance on Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act or (3) is a Free Writing Prospectus, .
(iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating An Underwriter may convey a Preliminary Term Sheet to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred a potential investor prior to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation entering into a Contract of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless Sale with such Underwriter has obtained the prior written approval of the Transferorinvestor; provided, however, that (x) each such Underwriter may prepare and convey to one or more shall not enter into a Contract of its potential investors one or more “written communications” (as defined in Rule 405 under Sale with such investor unless the Act) containing no more than the following: Underwriter has complied with paragraph (i) information contemplated by Rule 134 under the Act and included or above prior to be included in the Preliminary Prospectussuch Contract of Sale, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each such Underwriter will be permitted shall deliver a copy of the proposed Preliminary Term Sheet to provide confirmations of salethe Depositor and its counsel prior to the anticipated first use and shall not convey any such Preliminary Term Sheet to which the Depositor or its counsel reasonably objects.
(civ) Each An Underwriter severally and not jointly represents and agrees may convey Computational Materials (ix) that it did not enter into any contract of sale for any Certificates to a potential investor prior to the Time entering into a Contract of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for with such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no (A) such Underwriter makes shall not enter into a Contract of Sale with such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to investor unless the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance has complied with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it paragraph (i) has complied and will comply with all applicable provisions above prior to such Contract of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, Sale and (iiB) has only communicated or caused such Computational Materials shall not be disseminated in a manner reasonably designed to be communicated and will only communicate or cause lead to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communicationits broad unrestricted dissemination; provided, however, that if an Underwriter receives an oral communication from such Computational Materials are disseminated in a Rating Agencymanner reasonably designed to lead to its broad unrestricted dissemination, such Underwriter is authorized shall file with the Commission such Computational Materials, and (y) to inform an investor after a Contract of Sale, provided that the Underwriter has complied with paragraph (i) above in connection with such Rating Agency Contract of Sale. The Underwriter shall keep sufficient records of any conveyance of Computational Materials to potential or actual investors and shall maintain such records as required by the Rules and Regulations.
(v) If an Underwriter does not furnish a Free Writing Prospectus to the Depositor’s counsel prior to the scheduled print date of the Final Prospectus, such Underwriter will be deemed to have represented that it will respond did not convey any Free Writing Prospectus to any potential investor.
(vi) Each Free Writing Prospectus shall contain legends that are substantially similar to the oral communication following: The depositor has filed a registration statement (including a prospectus) with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency SEC for the purpose of (a) determining offering to which this free writing prospectus relates. Before you invest, you should read the initial credit rating prospectus in that registration statement and other documents the depositor has filed with the SEC for the Certificates, including more complete information about the issuer and this offering. You may get these documents for free by visiting EXXXX on the SEC Web site at wxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free 1-8[zz-zzz-zzzz]. This free writing prospectus does not contain all information that is required to be included in the base prospectus and the prospectus supplement. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. The asset-backed securities referred to in this free writing prospectus are being offered when, as and if issued. In particular, you are advised that asset-backed securities, and the asset pools backing them, are subject to modification or revision (including, among other things, the possibility that one or more classes of securities may be split, combined or eliminated), at any time prior to issuance or availability of a final prospectus. As a result, you may commit to purchase securities that have characteristics that may change, and you are advised that all or a portion of the Receivables securities may not be issued that have the characteristics described in this free writing prospectus. Our obligation to sell securities to you is conditioned on the securities having the characteristics described in this free writing prospectus. If that condition is not satisfied, we will notify you, and neither the legal structure issuer nor [the] [any] underwriter will have any obligation to you to deliver all or any portion of the Certificatessecurities which you have committed to purchase, or (b) undertaking credit rating surveillance on and there will be no liability between us as a consequence of the Certificates, including non-delivery. This free writing prospectus is being delivered to you solely to provide you with information about the characteristics and performance offering of the Receivablesasset-backed securities referred to in this free writing prospectus and to solicit an indication of your interest in purchasing such securities, when, as and if issued. Any such indication of interest will not constitute a contractual commitment by you to purchase any of the securities.
(vii) Any Computational Materials shall include legends, in addition to those specified in paragraph (vi) above, substantially similar to the following: The information in this free writing prospectus may be based on preliminary assumptions about the pool assets and the structure. Any such assumptions are subject to change. The information in this free writing prospectus may reflect parameters, metrics or scenarios specifically requested by you. If so, prior to the time of your commitment to purchase, you should request updated information based on any parameters, metrics or scenarios specifically required by you. Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented in this free writing prospectus, although that information may be based in part on loan level data provided by the issuer or its affiliates.
(viii) Each Underwriter severally agrees to retain all Free Writing Prospectuses that it has used and that are not filed pursuant to this Section 4 for a period of three years following the initial bona fide offering of the Underwritten Notes.
(c) The following terms shall have the meanings set forth below, unless the context clearly indicates otherwise:
Appears in 1 contract
Samples: Underwriting Agreement (New Century Home Equity Loan Trust 2006-2)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Final Prospectus.
(b) Other than Each Underwriter severally covenants and agrees with the Company as to itself that:
(i) Prior to entering into any Contract of Sale, the Preliminary Prospectus, Underwriter shall convey the Pricing Free Writing Prospectus to each prospective investor.
(ii) Unless preceded or accompanied by a prospectus satisfying the Ratings requirements of Section 10(a) of the Securities Act or access thereto is made available pursuant to Rule 173 of the Securities Act, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Notes, unless such written communication (1) is made in reliance on Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act or (3) is a Free Writing Prospectus, .
(iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating An Underwriter may convey a Preliminary Term Sheet to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred a potential investor prior to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation entering into a Contract of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless Sale with such Underwriter has obtained the prior written approval of the Transferorinvestor; provided, however, that (x) each such Underwriter may prepare and convey to one or more shall not enter into a Contract of its potential investors one or more “written communications” (as defined in Rule 405 under Sale with such investor unless the Act) containing no more than the following: Underwriter has complied with paragraph (i) information contemplated by Rule 134 under the Act and included or above prior to be included in the Preliminary Prospectussuch Contract of Sale, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each such Underwriter will be permitted shall deliver a copy of the proposed Preliminary Term Sheet to provide confirmations of salethe Depositor and its counsel prior to the anticipated first use and shall not convey any such Preliminary Term Sheet to which the Depositor or its counsel reasonably objects.
(civ) Each An Underwriter severally and not jointly represents and agrees may convey Computational Materials (ix) that it did not enter into any contract of sale for any Certificates to a potential investor prior to the Time entering into a Contract of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for with such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no (A) such Underwriter makes shall not enter into a Contract of Sale with such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to investor unless the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance has complied with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it paragraph (i) has complied and will comply with all applicable provisions above prior to such Contract of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, Sale and (iiB) has only communicated or caused such Computational Materials shall not be disseminated in a manner reasonably designed to be communicated and will only communicate or cause lead to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communicationits broad unrestricted dissemination; provided, however, that if an Underwriter receives an oral communication from such Computational Materials are disseminated in a Rating Agencymanner reasonably designed to lead to its broad unrestricted dissemination, such Underwriter is authorized shall file with the Commission such Computational Materials, and (y) to inform an investor after a Contract of Sale, provided that the Underwriter has complied with paragraph (i) above in connection with such Rating Agency Contract of Sale. The Underwriter shall keep sufficient records of any conveyance of Computational Materials to potential or actual investors and shall maintain such records as required by the Rules and Regulations.
(v) If an Underwriter does not furnish a Free Writing Prospectus to the Depositor’s counsel prior to the scheduled print date of the Final Prospectus, such Underwriter will be deemed to have represented that it will respond did not convey any Free Writing Prospectus to any potential investor.
(vi) Each Free Writing Prospectus shall contain legends that are substantially similar to the oral communication following: The issuer has filed a registration statement (including a prospectus) with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency SEC for the purpose of (a) determining offering to which this free writing prospectus relates. Before you invest, you should read the initial credit rating prospectus in that registration statement and other documents the issuer has filed with the SEC for the Certificates, including more complete information about the issuer and this offering. You may get these documents for free by visiting EXXXX on the SEC Web site at wxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free 1-8[zz-zzz-zzzz]. This free writing prospectus does not contain all information that is required to be included in the base prospectus and the prospectus supplement. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. The asset-backed securities referred to in this free writing prospectus are being offered when, as and if issued. In particular, you are advised that asset-backed securities, and the asset pools backing them, are subject to modification or revision (including, among other things, the possibility that one or more classes of securities may be split, combined or eliminated), at any time prior to issuance or availability of a final prospectus. As a result, you may commit to purchase securities that have characteristics that may change, and you are advised that all or a portion of the Receivables securities may not be issued that have the characteristics described in this free writing prospectus. Our obligation to sell securities to you is conditioned on the securities having the characteristics described in this free writing prospectus. If that condition is not satisfied, we will notify you, and neither the legal structure issuer nor [the] [any] underwriter will have any obligation to you to deliver all or any portion of the Certificatessecurities which you have committed to purchase, or (b) undertaking credit rating surveillance on and there will be no liability between us as a consequence of the Certificates, including non-delivery. This free writing prospectus is being delivered to you solely to provide you with information about the characteristics and performance offering of the Receivablesasset-backed securities referred to in this free writing prospectus and to solicit an indication of your interest in purchasing such securities, when, as and if issued. Any such indication of interest will not constitute a contractual commitment by you to purchase any of the securities.
(vii) Any Computational Materials shall include legends, in addition to those specified in paragraph (vi) above, substantially similar to the following: The information in this free writing prospectus may be based on preliminary assumptions about the pool assets and the structure. Any such assumptions are subject to change. The information in this free writing prospectus may reflect parameters, metrics or scenarios specifically requested by you. If so, prior to the time of your commitment to purchase, you should request updated information based on any parameters, metrics or scenarios specifically required by you. Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented in this free writing prospectus, although that information may be based in part on loan level data provided by the issuer or its affiliates.
(viii) Each Underwriter severally agrees to retain all Free Writing Prospectuses that it has used and that are not filed pursuant to this Section 4 for a period of three years following the initial bona fide offering of the Underwritten Notes.
(c) The following terms shall have the meanings set forth below, unless the context clearly indicates otherwise: Computational Materials: Any Free Writing Prospectus prepared by the Underwriter that contains only (i) information of the type specified in paragraph (5) of the definition of ABS Informational and Computational Materials in Item 1101(a) of Regulation AB or (ii) information that is not Issuer Information.
Appears in 1 contract
Samples: Underwriting Agreement (New Century Home Equity Loan Trust 2006-S1)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Final Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Final Prospectus and the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and Sale, (ii) that, during the period prior to the filing of the final Final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract Contract of sale Sale (within the meaning of Rule 159 under the Act) for such investorinvestor and (iii) that it will deliver any final Corrected Prospectus (and any information that corrects any material misstatements or omissions) to each investor at least 48 hours before the new Time of Sale.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any 12 Underwriting Agreement-Series 2023-1 material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Final Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer or the Transferor, and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom.
(h) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates Notes to any UK retail investor in the EEAUnited Kingdom. For the purposes of this provision, :
(i) the expression “UK retail investor” means a person who is one (or more) of the following: (A) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of the domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018, as amended (the “EUWA”); or (B) a customer within the meaning 13 Underwriting Agreement-Series 2023-1 of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of the domestic law of the United Kingdom by virtue of the EUWA; or (C) not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 (as amended) (the “Prospectus Regulation”) as it forms part of the domestic law of the United Kingdom by virtue of the EUWA; and
(ii) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes.
(i) Each Underwriter, severally, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Notes to any EU retail investor in the European Economic Area. For the purposes of this provision:
(i) the expression “EU retail investor” means a person who is one (or more) of the following: (A) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (iiB) a customer within the meaning of Directive 2002/92/EC (EU) 2016/97 (as amendedamended or superseded), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II XxXXX XX; or (iiiC) not a qualified investor as defined in Directive 2003/71/EC the Prospectus Regulation; and
(ii) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as amended)to enable an investor to decide to purchase or subscribe for the Notes.
(ij) Each Underwriter, severally and but not jointly, covenants with the Bank represents and the Transferor that on or prior to the Closing Dateagrees that, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) it has not delivered, and will not deliver without the prior written consent of the Transferor or the Bank, any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or the Bank, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Transferor or the Bank or refer such Hired NRSRO or other nationally recognized statistical rating organization to the Transferor or refer such Rating Agency to the TransferorBank, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the CertificatesUnderwritten Notes, including information about the characteristics of the Receivables and the legal structure of the CertificatesUnderwritten Notes, or as contemplated by Rule 17g-5(a)(3)(iii)(C), and (b) undertaking credit rating surveillance on the CertificatesUnderwritten Notes, including information about the characteristics and performance of the Receivables, as contemplated by Rule 17g-5(a)(3)(iii)(D).
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Funding LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Prospectus, the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”)Fees Free Writing Prospectus, each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and but not jointly, represents, warrants represents and agrees that it that, (ia) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offereddelivered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in deliver without the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) prior written consent of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amendedTransferor or BBD, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or BBD, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Bank Transferor or BBD or refer such Hired NRSRO or other nationally recognized statistical rating organization to the Transferor or refer such Rating Agency to the TransferorBBD, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the CertificatesUnderwritten Notes, including information about the characteristics of the Receivables and the legal structure of the CertificatesUnderwritten Notes, or and (b) undertaking credit rating surveillance on the CertificatesUnderwritten Notes, including information about the characteristics and performance of the Receivables, in each case as contemplated by Rule 17g5(a)(3)(iii)(C).
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwritercovenants, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.Company and AHFC that:
(fa) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (activity, within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended (the “FSMA) ”), received by it in connection with the issue or sale of any Certificates Underwritten Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.Trust or the depositor; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Underwritten Notes in, from or otherwise involving the United Kingdom;
(hb) Each Underwriterin relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, severally a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not jointlymade and will not make an offer of Underwritten Notes to any person in that Relevant Member State; provided that no such offer of Underwritten Notes shall require the Trust, represents, warrants and agrees that the depositor or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive; and
(c) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates Underwritten Notes to any “retail investor investor” in the EEAEuropean Economic Area. For the purposes of this provision, Section 4 of this Agreement: (1) the expression “retail investor” means a person who is one (or more) of the following: (iA) a “retail client client” as defined in point Point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID MIFID II”); or (iiB) a customer “customer” within the meaning of Directive 2002/92/EC (known as the Insurance Mediation Directive) as amended), where that customer would not qualify as a “professional client client” as defined in point Point (10) of Article 4(1) of MiFID II MIFID II; or (iiiC) not a “qualified investor investor” as defined in the Prospective Directive; (2) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Underwritten Notes to be offered so as to enable an investor to decide to purchase or to subscribe for the Underwritten Notes; and (3) the expression “Prospectus Directive” means Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Actincluding by Directive 2010/73/EU), and (b) will not participate includes any relevant implementing measure in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivableseach Relevant Member State.
Appears in 1 contract
Samples: Underwriting Agreement (Honda Auto Receivables 2018-3 Owner Trust)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Final Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Final Prospectus and the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and Sale, (ii) that, during the period prior to the filing of the final Final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract Contract of sale Sale (within the meaning of Rule 159 under the Act) for such investorinvestor and (iii) that it will deliver any final Corrected Prospectus (and any information that corrects any material misstatements or omissions) to each investor at least 48 hours before the new Time of Sale.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Final Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer or the Transferor, and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom.
(h) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates Notes to any UK retail investor in the EEAUnited Kingdom. For the purposes of this provision, :
(i) the expression “UK retail investor” means a person who is one (or more) of the following: (A) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of the domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Xxx 0000, as amended (the “EUWA”); or (B) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional 13 Underwriting Agreement-Series 20[_]-[_] client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of the domestic law of the United Kingdom by virtue of the EUWA; or (C) not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 (as amended) (the “Prospectus Regulation”) as it forms part of the domestic law of the United Kingdom by virtue of the EUWA; and
(ii) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes.
(i) Each Underwriter, severally, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Notes to any EU retail investor in the European Economic Area. For the purposes of this provision:
(i) the expression “EU retail investor” means a person who is one (or more) of the following: (A) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (iiB) a customer within the meaning of Directive 2002/92/EC (EU) 2016/97 (as amendedamended or superseded), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II II; or (iiiC) not a qualified investor as defined in Directive 2003/71/EC the Prospectus Regulation; and
(ii) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as amended)to enable an investor to decide to purchase or subscribe for the Notes.
(ij) Each Underwriter, severally and but not jointly, covenants with the Bank represents and the Transferor that on or prior to the Closing Dateagrees that, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) it has not delivered, and will not deliver without the prior written consent of the Transferor or the Bank, any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or the Bank, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Transferor or the Bank or refer such Hired NRSRO or other nationally recognized statistical rating organization to the Transferor or refer such Rating Agency to the TransferorBank, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the CertificatesUnderwritten Notes, including information about the characteristics of the Receivables and the legal structure of the CertificatesUnderwritten Notes, or as contemplated by Rule 17g-5(a)(3)(iii)(C), and (b) undertaking credit rating surveillance on the CertificatesUnderwritten Notes, including information about the characteristics and performance of the Receivables, as contemplated by Rule 17g-5(a)(3)(iii)(D).
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Funding LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Prospectus, the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”)Fees Free Writing Prospectus, each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has, (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer, and (ii) complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom.
(h) Each With respect to each Member State of the European Economic Area which has implemented Directive 2003/71/EC (and amendments thereto, including Directive 2010/73/EU, to the extent implemented by the relevant Member State of the European Economic Area, and any relevant implementing measure in the relevant Member State of the European Economic Area (the “Prospectus Directive”)) (each a “Relevant Member State”), each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not offered, sold or otherwise made available and will not offermake an offer of notes which are the subject of the offering contemplated by the Prospectus to the public in that Relevant Member State except that it may, sell or otherwise with effect from and including the Relevant Implementation Date, make available an offer of notes which are the subject of the offering contemplated by the Prospectus to the public in that Relevant Member State: (i) at any Certificates time to any retail investor legal entity which is a “qualified investor” as defined in the EEAProspectus Directive; (ii) at any time to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of Directive 2010/73/EU, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive); or (iii) at any time in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of notes shall require the Issuer or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression “retail investoroffer any notes to the public” in relation to any notes in any Relevant Member State means a person who is one (or more) the communication in any form and by any means of sufficient information on the terms of the following: (i) a retail client offer and the notes to be offered so as defined to enable an investor to decide to purchase or subscribe the notes, as the same may be varied in point (11) of Article 4(1) of that Relevant Member State by any measure implementing the Prospectus Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where in that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended)Relevant Member State.
(i) Each Underwriter, severally and but not jointly, covenants with the Bank represents and the Transferor that on or prior to the Closing Dateagrees that, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) it has not delivered, and will not deliver without the prior written consent of the Transferor or BBD, any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or BBD, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Bank Transferor or BBD or refer such Hired NRSRO or other nationally recognized statistical rating organization to the Transferor or refer such Rating Agency to the TransferorBBD, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the CertificatesUnderwritten Notes, including information about the characteristics of the Receivables and the legal structure of the CertificatesUnderwritten Notes, or and (b) undertaking credit rating surveillance on the CertificatesUnderwritten Notes, including information about the characteristics and performance of the Receivables, in each case as contemplated by Rule 17g5(a)(3)(iii)(C).
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after Upon the Effective Dateauthorization by the Representatives of the release of the Notes, the several Underwriters propose to offer the Certificates Notes for sale to upon the public as terms and conditions set forth in this Agreement and the Preliminary Prospectus.
(ba) Other than Each Underwriter, severally and not jointly, represents, warrants, covenants and agrees with the Trust and Verizon Wireless that:
(i) other than the Preliminary Prospectus and the Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, prepared, authorized, approved, disseminated approved or referred to and will not prepare, make, use, authorize, approve, disseminate approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesNotes, including including, but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Securities Act unless such Underwriter has obtained the prior written approval of Verizon Wireless and the TransferorDepositor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors without the consent of Verizon Wireless, the Depositor or any of their respective affiliates one or more “written communications” (as defined in Rule 405 under the Securities Act) containing no more in the form of (a) information included in the Time of Sale Information, (b) information customarily included in confirmations of sales of securities and notices of allocations, (c) certain Intex.cdi files relating to the Receivables that does not contain any Issuer Information (as defined below) other than Issuer Information included in the following: Preliminary Prospectus previously filed with the Commission, (id) information contemplated by Rule 134 under the Securities Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (iie) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Bloomberg Screen (each such communicationother written communication enumerated in this Section 4(a)(i), an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus). As used herein, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for term “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Issuer Information” means any oral or written information provided of the type specified in clauses (1) – (5) of footnote 271 of Commission Release No. 33-8591 (Securities Offering Reform), other than Underwriter Derived Information. As used herein, the term “Underwriter Derived Information” shall refer to a Rating Agency for information of the purpose type described in clause (5) of footnote 271 of Commission Release No. 33-8591 (aSecurities Offering Reform) determining the initial credit rating for the Certificateswhen prepared by any Underwriter, including information about traditional computational and analytical materials prepared by the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.Underwriter;
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Final Prospectus.
(b) Other than Each Underwriter severally covenants and agrees with the Company as to itself that:
(i) Prior to entering into any Contract of Sale, the Underwriter shall convey the Preliminary Prospectus, Prospectus to each prospective investor. The Underwriter shall keep sufficient records to document its conveyance of the Preliminary Prospectus to each potential investor prior to the related Contract of Sale.
(ii) Unless preceded or accompanied by a prospectus satisfying the Ratings requirements of Section 10(a) of the Securities Act, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Notes, unless such written communication (1) is made in reliance on Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act or (3) is a Free Writing Prospectus, .
(iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating An Underwriter may convey a Preliminary Term Sheet to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred a potential investor prior to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation entering into a Contract of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless Sale with such Underwriter has obtained the prior written approval of the Transferorinvestor; provided, however, that (x) each such Underwriter may prepare and convey to one or more shall not enter into a Contract of its potential investors one or more “written communications” (as defined in Rule 405 under Sale with such investor unless the Act) containing no more than the following: Underwriter has complied with paragraph (i) information contemplated by Rule 134 under the Act and included or above prior to be included in the Preliminary Prospectussuch Contract of Sale, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each such Underwriter will be permitted shall deliver a copy of the proposed Preliminary Term Sheet to provide confirmations of salethe Depositor and its counsel prior to the anticipated first use and shall not convey any such Preliminary Term Sheet to which the Depositor or its counsel reasonably objects.
(civ) Each An Underwriter severally and not jointly represents and agrees may convey Computational Materials (ix) that it did not enter into any contract of sale for any Certificates to a potential investor prior to the Time entering into a Contract of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for with such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no (A) such Underwriter makes shall not enter into a Contract of Sale with such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to investor unless the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance has complied with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it paragraph (i) has complied and will comply with all applicable provisions above prior to such Contract of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, Sale and (iiB) has only communicated or caused such Computational Materials shall not be disseminated in a manner reasonably designed to be communicated and will only communicate or cause lead to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communicationits broad unrestricted dissemination; provided, however, that if an Underwriter receives an oral communication from such Computational Materials are disseminated in a Rating Agencymanner reasonably designed to lead to its broad unrestricted dissemination, such Underwriter is authorized shall file with the Commission such Computational Materials, and (y) to inform an investor after a Contract of Sale, provided that the Underwriter has complied with paragraph (i) above in connection with such Rating Agency Contract of Sale. The Underwriter shall keep sufficient records of any conveyance of Computational Materials to potential or actual investors and shall maintain such records as required by the Rules and Regulations.
(v) If an Underwriter does not furnish a Free Writing Prospectus to the Depositor's counsel prior to the scheduled print date of the Final Prospectus, such Underwriter will be deemed to have represented that it will respond did not convey any Free Writing Prospectus to any potential investor.
(vi) Each Free Writing Prospectus shall contain legends that are substantially similar to the oral communication following: The issuer has filed a registration statement (including a prospectus) with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency SEC for the purpose of (a) determining offering to which this free writing prospectus relates. Before you invest, you should read the initial credit rating prospectus in that registration statement and other documents the issuer has filed with the SEC for the Certificates, including more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at WWW.SEC.GOV. Alternativxxx, the issuer, any underwriter or xxx dealer participating in the offering will arrange to send you the prospectus if you request it by calling toll-free 1-8[zz-zzz-zzzz]. This free writing prospectus does not contain all information that is required to be included in the base prospectus and the prospectus supplement. The information in this free writing prospectus supersedes information contained in any prior similar free writing prospectus relating to these securities prior to the time of your commitment to purchase. The asset-backed securities referred to in this free writing prospectus are being offered when, as and if issued. In particular, you are advised that asset-backed securities, and the asset pools backing them, are subject to modification or revision (including, among other things, the possibility that one or more classes of securities may be split, combined or eliminated), at any time prior to issuance or availability of a final prospectus. As a result, you may commit to purchase securities that have characteristics that may change, and you are advised that all or a portion of the Receivables securities may not be issued that have the characteristics described in this free writing prospectus. Our obligation to sell securities to you is conditioned on the securities having the characteristics described in this free writing prospectus. If that condition is not satisfied, we will notify you, and neither the legal structure issuer nor [the] [any] underwriter will have any obligation to you to deliver all or any portion of the Certificatessecurities which you have committed to purchase, or (b) undertaking credit rating surveillance on and there will be no liability between us as a consequence of the Certificates, including non-delivery. This free writing prospectus is being delivered to you solely to provide you with information about the characteristics and performance offering of the Receivablesasset-backed securities referred to in this free writing prospectus and to solicit an indication of your interest in purchasing such securities, when, as and if issued. Any such indication of interest will not constitute a contractual commitment by you to purchase any of the securities.
(vii) Any Computational Materials shall include legends, in addition to those specified in paragraph (vi) above, substantially similar to the following: The information in this free writing prospectus may be based on preliminary assumptions about the pool assets and the structure. Any such assumptions are subject to change. The information in this free writing prospectus may reflect parameters, metrics or scenarios specifically requested by you. If so, prior to the time of your commitment to purchase, you should request updated information based on any parameters, metrics or scenarios specifically required by you. Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented in this free writing prospectus, although that information may be based in part on loan level data provided by the issuer or its affiliates.
(viii) Each Underwriter severally agrees to retain all Free Writing Prospectuses that it has used and that are not required to be filed pursuant to this Section 4 for a period of three years following the initial bona fide offering of the Underwritten Notes.
(c) The following terms shall have the meanings set forth below, unless the context clearly indicates otherwise: COMPUTATIONAL MATERIALS: Any Free Writing Prospectus prepared by the Underwriter that contains only (i) information of the type specified in paragraph (5) of the definition of ABS Informational and Computational Materials in Item 1101(a) of Regulation AB or (ii) information that is not Issuer Information.
Appears in 1 contract
Samples: Underwriting Agreement (New Century Mortgage Securities LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Class A Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Class A Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Class A Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Class A Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Class A Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Class A Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Class A Certificates, transfer, deposit or otherwise convey any Class A Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Class A Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Class A Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, the Preliminary Prospectus or any other offering material relating to the Class A Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the TrustTrust or the Transferor.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the United Kingdom. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “EUWA”); (ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended) as it forms part of domestic law by virtue of the EUWA, and the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe for the Certificates.
(i) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the European Economic Area (the “EEA”). For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); ;
(ii) a customer within the meaning of Directive 2002/92/EC (as amended)the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II II; or (iii) not a qualified investor as defined in Directive 2003/71/EC Regulation (EU) 2017/1129 (as amended), and the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe for the Certificates.
(ij) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Class A Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Class A Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Class A Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, that after the Effective Date, the Underwriters propose each Underwriter proposes to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Each Underwriter shall comply with all applicable laws and regulations in connection with its use of Free Writing Prospectuses, including but not limited to Rules 164 and 433 of the Act.
(c) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus Additional Information and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or other information approved by the Transferor (the “Permitted Additional Information”)Transferor, each Underwriter severally and not jointly represents, warrants and covenants agrees with the Transferor and the Bank that it has not prepared, made, used, prepared, authorized, approved, disseminated approved or referred to and will not prepare, make, use, prepare, authorize, approve, disseminate approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesNotes, including including, but not limited to to, any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained Act. Notwithstanding the prior written approval of foregoing, the Transferor; provided, however, Transferor agrees that (x) each Underwriter the Underwriters may prepare and convey disseminate information on Bloomberg to one or more of its potential prospective investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: relating solely to (i) information contemplated by of the type identified in Rule 134 under of the Act and included or to be Act, (ii) information included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (iiiii) columns or other entries showing the status of allocations and subscriptions of the subscriptionsNotes, the expected pricing parameters, parameters of the Notes and the yields and weighted average life or the trade date lives of the Certificates Notes, and (iv) information constituting final terms of the Notes within the meaning of Rule 433(d)(5)(ii) under the Act (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations ); provided that in the case of sale.
(c) Each Underwriter severally and not jointly represents and agrees the foregoing clauses (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and through (ii) thativ), during the period prior to the filing of other than the final pricing terms, such Underwriter Free Writing Prospectus (as notified would not be required to be filed with the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investorCommission.
(d) Each Underwriter severally and not jointly represents, warrants and agrees with the Transferor, the Issuer and the Bank that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificatesthe Notes, include any untrue statement of a material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that which was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate written information furnished to the related Underwriter by the Transferor Transferor, the Issuer or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferor, the Issuer or the Bank to the related Underwriter reasonably within a reasonable period of time prior to the time of first use of such Underwriter Free Writing Prospectus; and;
(ii) if required by Rule 433(c)(2)(i) of the Act, each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations Rule 433(c)(2)(i) of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act; and
(iii) each Underwriter Free Writing Prospectus prepared by it shall be delivered to the Transferor no later than the date of first use and, unless otherwise agreed to by the Transferor and the related Underwriter, such delivery shall occur no later than the close of business for the Bank (Central Time) on the date of first use; provided, however, if the date of first use is not a Business Day, such delivery shall occur no later than the close of business for the Bank (Central Time) on the first Business Day after such date of first use.
(e) Each Underwriter, severally and not jointly, represents, warrants Underwriter represents and agrees (i) that it will notdid not enter into any Contract of Sale for any Notes prior to the Time of Sale and (ii) that it will, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesNotes, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without deliver to each investor to whom Notes are sold by it during the period prior written consent to the filing of the Transferorfinal Prospectus (as notified to such Underwriter by the Transferor or by the Bank), prior to the applicable time of any such Contract of Sale with respect to such investor, the Preliminary Prospectus.
(f) Each UnderwriterIn the event the Bank, severally and not jointlythe Transferor or any Underwriter becomes aware that, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any as of the Certificates Time of Sale, any Time of Sale Information contains or distribute contained any untrue statement of material fact or omits or omitted to state any material fact necessary in order to make the Prospectus, statements contained therein in light of the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except circumstances under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and beliefwhich they were made, not impose any obligations on the Transferor except as set forth herein.
misleading (g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMADefective Information”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each such Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates Transferor, as applicable, shall promptly notify the Representatives and, in the case of any Underwriter giving such communication; providednotice, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond of such untrue statement or omission no later than one Business Day after discovery and the Transferor shall prepare and deliver to the oral communicationUnderwriters a Corrected Prospectus. “Rating Each Underwriter shall deliver such Corrected Prospectus to any person with whom a Contract of Sale was entered into based on such Defective Information” means , and such Underwriter shall provide any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics such person with adequate disclosure of the Receivables person’s rights under the existing Contract of Sale and a meaningful ability to elect to terminate or not terminate the legal structure prior Contract of the Certificates, Sale and to elect to enter into or (b) undertaking credit rating surveillance not enter into a new Contract of Sale based on the Certificates, including information about set forth in the characteristics and performance of the ReceivablesCorrected Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (First National Funding LLC)
Offering by Underwriters. (a) It is understood that, The Issuers understand that the Underwriters intend to make a public offering of the Securities as soon after the Effective Dateeffectiveness of this Agreement as in the judgment of the Representative is advisable, the Underwriters propose and initially to offer the Certificates for sale to Securities on the public as terms set forth in the Preliminary ProspectusTime of Sale Information. The Issuers acknowledge and agrees that the Underwriters may offer and sell Securities to or through any Affiliate of an Underwriter and that any such Affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, represents and warrants to and agrees that it with the Issuers and the Guarantors that:
(i) It has not and will notnot use, at authorize use of, refer to, or participate in the planning for use of, any such time that such Underwriter is acting as an “underwriter” (free writing prospectus”, as defined in Rule 405 under the Act (which term includes use of any written information furnished to the Commission by the Issuers and not incorporated by reference into the Registration Statement and any press release issued by the Issuers) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Schedule II or prepared pursuant to Section 2(a)(113(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Issuers in advance in writing (each such free writing prospectus referred to in clause (i) or (iii), an “Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Schedule II hereto without the consent of the ActIssuers.
(ii) It is not subject to any pending proceeding under Section 8A of the Act with respect to the Certificates, transfer, deposit or otherwise convey offering (and will promptly notify the Issuers if any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without proceeding against it is initiated during the prior written consent of the TransferorProspectus Delivery Period (as defined below)).
(fiii) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any In relation to each Member State of the Certificates or distribute European Economic Area which has implemented the ProspectusProspectus Directive (each, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the a “FSMARelevant Member State”), with respect to anything done by it effect from and including the date on which the Prospectus Directive is implemented in relation to any Certificates inthat Relevant Member State (the “Relevant Implementation Date”), from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offermake an offer of Securities to the public in that Relevant Member State, sell or otherwise make available any Certificates other than:
(A) to any retail legal entity which is a qualified investor as defined in the EEAProspectus Directive;
(B) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the Representative for any such offer; or
(C) in any other circumstances which do not require the publication of a prospectus by the Issuers pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “retail investoroffer of notes to the public” in relation to any notes in any Relevant Member State means a person who is one (the communication in any form and by any means of sufficient information on the terms for the offer and the shares to be offered so as to enable an investor to decide to purchase or more) of subscribe the following: (i) a retail client Notes, as defined the same may be varied in point (11) of Article 4(1) of that Relevant Member State by any measure implementing the Prospectus Directive 2014/65/EU (as amendedin that Relevant Member State, “MiFID II”); (ii) a customer within the meaning of expression Prospectus Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in means Directive 2003/71/EC (as amended)and amendments thereto, including the PD 2010 Amending Directive to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in each Relevant Member State, and the expression 2010 PD Amending Directive means Directive 2010/73/EU.
(iiv) Each Underwriter, severally and not jointly, covenants with It will only distribute the Bank and the Transferor that on Prospectus or prior any other material in relation to the Closing Date, and thereafter, Securities to persons in the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11United Kingdom that are qualified investors within the meaning of Article 2(1)(e) of the Act Prospective Directive that also (i) have professional experience in matters relating to investments falling within Article 19(5) of the Financial Services and Markets Xxx 0000 (Financial Promotion) Order 2005, as amended, or the Order, (ii) fall within Article 49(2)(a) to (d) of the Order or (iii) to whom it may otherwise lawfully be communicated.
(v) It will not offer or sell any of the Securities or take any other action with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within Securities in Ireland otherwise than in conformity with the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose provisions of (a) determining the initial credit rating for European Communities (Markets in Financial Instruments) Regulations 2007 (Nos. 1 to 3), including, without limitation, Regulations 7 and 152 thereof or any codes of conduct used in connection therewith and the Certificates, including information about the characteristics provisions of the Receivables and the legal structure of the CertificatesInvestor Compensation Xxx 0000, or (b) undertaking credit rating surveillance on the CertificatesCompanies Acts 1963 to 2013 or, including information about as applicable, the characteristics Companies Xxx 0000, the Central Bank Acts 1942 to 2014 and performance any code of conduct rules made under Section 117(1) of the ReceivablesCentral Bank Act 1989, (c) the Prospectus (Directive 2003/71/EC) Regulations 2005 and any rules issued under Section 51 of the Investment Funds, Companies and Miscellaneous Provisions Xxx 0000 or, as applicable, Section 1363 of the Companies Xxx 0000 by the Central Bank of Ireland and (d) the Market Abuse (Directive 2003/6/EC) Regulations 2005 and any rules issued under Section 34 of the Investment Funds, Companies and Miscellaneous Provisions Xxx 0000 or, as applicable, Section 1370 of the Companies Xxx 0000 by the Central Bank of Ireland.
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Certificates Offered Notes for sale to the public as set forth in the Preliminary Prospectusrelated Prospectus and that the Underwriters will not offer, sell or otherwise distribute the Offered Notes (except for the sale thereof in exempt transactions) in any state in which the Offered Notes are not exempt from registration under "blue sky" or state securities laws (except where the Offered Notes will have been qualified for offering and sale at the Underwriters' direction under such "blue sky" or state securities laws).
(b) Other than (i) Each Underwriter agrees that it shall not enter into any Contract of Sale with any investor with respect to any class of Notes with a minimum denomination of $1,000 until the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Base Prospectus and Prospectus Supplement have been delivered to such investor.
(ivc) any materials included in one or more “In the event that an Underwriter used a "road shows” show" (as defined in Rule 433(h433(h)(4) under the Act) relating in connection with the offering of the Notes, the Underwriter agrees that all information in such road show shall be provided orally only and not as a "written communication" (as defined in Rule 405 under the Act). Each Underwriter agrees that any slideshow used in connection with a road show (i) shall only be provided as part of the road show and not separately, (ii) if handed out at any meeting as a hard copy, shall be retrieved prior to the Certificates authorized or approved by end of the Transferor meeting and (iii) will otherwise be used only in a manner that does not cause the “Permitted Additional Information”slideshow to be treated as a "free writing prospectus" (as defined in Rule 405 under the Act), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to .
(d) If any “"written communication” " (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy in connection with the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval offering of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, Notes contains an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any omits to state a material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectusstatements, in light of the circumstances under which they were made, not misleading; providedmisleading at the time that a Contract of Sale was entered into, howeverwhen taken together with all information that was conveyed to any person with whom a Contract of Sale was entered into, then the applicable Underwriter shall provide any such person with the following:
(i) Adequate disclosure of the contractual arrangement;
(ii) Adequate disclosure of the person's rights under the existing Contract of Sale at the time termination is sought;
(iii) Adequate disclosure of the new information that no Underwriter makes such representation, warranty or agreement is necessary to correct the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to given at the time of first use of such Underwriter Free Writing Prospectusthe original Contract; and
(iiiv) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in A meaningful ability to elect to terminate or not terminate the form prior Contract of Sale and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and elect to enter into or not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates enter into a trust or other type new Contract of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the TransferorSale.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (CWHEQ, Inc.)
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Time of Sale Information and the Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(ea) Each Underwriter, severally and not jointly, represents, warrants and agrees with the Depositor and the Sponsor that it will not, at if any such time that such Underwriter is acting as an “underwriter” (as defined Notes are offered in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.United Kingdom:
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and communicatedand it will only communicate or cause to be communicated an invitation or inducement orinducement to engage in investment activity (within the meaning of Section 21 of ofthe Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Certificates of the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuing Entity; and
(ii) it has complied and will comply with all applicableprovisions of the FSMA with respect to anything done by it inrelation to the Notes in, from or otherwise involving the United Kingdom.
(hb) Each Underwriter, severally and not jointly, represents, warrants and agrees with the Depositor and the Sponsor that if any Notes are offered in the European Economic Area that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in an offer of Notes which are the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) subject of the following: offering contemplated by the Prospectus Supplement to the public in any country that is a member of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each, a “Relevant Member State”) other than:
(i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not to any legal entity which is a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriterand amendments thereto, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafterincluding Directive 2010/73/EU, to the extent applicableimplemented in the Relevant Member State), so long as it is acting as an and includes any relevant implementing measure in the Relevant Member State (the “underwriter” Prospectus Directive”);
(ii) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of Directive 2010/73/EU, 150, natural or legal persons (other than qualified investors as defined in Section 2(a)(11the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the relevant underwriter or underwriters nominated by the Issuing Entity for any such offer; or
(iii) in any other circumstances falling within Article 3(2) of the Act with respect to Prospectus Directive; provided that no such offer of Notes shall require the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency Issuing Entity or any other “nationally recognized statistical rating organization” (within the meaning underwriter to publish a prospectus pursuant to Article 3 of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency Prospectus Directive or any other “nationally recognized statistical rating organization” (within the meaning supplement a prospectus pursuant to Article 16 of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesProspective Directive.
Appears in 1 contract
Samples: Underwriting Agreement (Mercedes-Benz Auto Lease Trust 2015-A)
Offering by Underwriters. (a) It is understood that, The Issuer understands that the Underwriters intend to make a public offering of the Securities as soon after the Effective Dateeffectiveness of this Agreement as in the judgment of the Representatives is advisable, the Underwriters propose and initially to offer the Certificates for sale to Securities on the public as terms set forth in the Preliminary ProspectusTime of Sale Information. The Issuer acknowledges and agrees that the Underwriters may offer and sell Securities to or through any Affiliate of an Underwriter and that any such Affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, represents and warrants to and agrees that it with the Issuer and the Guarantors that:
(i) It has not and will notnot use, at authorize use of, refer to, or participate in the planning for use of, any such time that such Underwriter is acting as an “underwriter” (free writing prospectus”, as defined in Rule 405 under the Act (which term includes use of any written information furnished to the Commission by the Issuer and not incorporated by reference into the Registration Statement and any press release issued by the Issuer) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Schedule II or prepared pursuant to Section 2(a)(111(c) or Section 5(c) hereof (including any electronic road show) or (iii) any free writing prospectus prepared by such Underwriter and approved by the Issuer in advance in writing (each such free writing prospectus referred to in clause (i) or (iii), an “Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Underwriters may use the Pricing Term Sheet referred to in Schedule II hereto without the consent of the ActIssuer.
(ii) It is not subject to any pending proceeding under Section 8A of the Act with respect to the Certificates, transfer, deposit or otherwise convey offering (and will promptly notify the Issuer if any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without proceeding against it is initiated during the prior written consent of the TransferorProspectus Delivery Period (as defined below)).
(fiii) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it Solely in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) offering of the FSMA does not apply to the Trust.
(h) Each UnderwriterSecurities, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates Securities to any retail investor in the EEAEuropean Economic Area. For the purposes of this provision, the expression clause (iii):
(A) a “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU EU, as amended (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (EU) 2016/97, as amendedamended or superseded (the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II II; or (iii) not a qualified investor as defined in Directive 2003/71/EC Regulation (EU) 2017/1129, as amendedamended or superseded (the “Prospectus Regulation”); and
(B) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe the Securities.
(iiv) Each Underwriter, severally and not jointly, covenants with It will only distribute the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency Prospectus or any other “nationally recognized statistical rating organization” (material in relation to the Securities to persons in the United Kingdom that are qualified investors within the meaning of the Exchange ActProspectus Regulation that also (i) have professional experience in matters relating to investments falling within Article 19(5) of the Financial Services and Markets Xxx 0000 (Financial Promotion) Order 2005, as amended (the “Order”), and (bii) fall within Article 49(2)(a) to (d) of the Order or (iii) to whom it may otherwise lawfully be communicated.
(v) It will not participate in offer or sell any oral communication of Rating Information with any Rating Agency the Securities or take any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond action with respect to the oral communication Securities in Ireland otherwise than in conformity with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose provisions of (a) determining the initial credit rating for the CertificatesEuropean Union (Markets in Financial Instruments) Regulations 2017, including information about the characteristics Directive 2014/65/EU of the Receivables European Parliament and of the Council of 15 May 2014 on markets in financial instruments, Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 and all implementing measures, delegated acts and guidance in respect thereof and the legal structure provisions of the CertificatesInvestor Compensation Xxx 0000, or (b) undertaking credit rating surveillance on the CertificatesCompanies Xxx 0000, including information about the characteristics Central Bank Acts 1942 to 2018 and performance any code of conduct rules made under Section 117(1) of the ReceivablesCentral Bank Act 1989, (c) the Prospectus Regulation (EU) 2017/1129, the European Union (Prospectus) Regulations 2019, the Central Bank (Investment Market Conduct) Rules 2019 and any other rules made or guidelines issued under Section 1363 of the Companies Xxx 0000 by the Central Bank of Ireland and (d) the Market Abuse Regulation (EU 596/2014), the European Union (Market Abuse) Regulations 2016 and any rules made or guidelines issued under Section 1370 of the Companies Xxx 0000 by the Central Bank of Ireland.
(vi) To the best of its knowledge, it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any person or entity that is a tax resident of the Netherlands or has a (deemed) permanent establishment in the Netherlands or any other (deemed) taxable presence in the Netherlands to which the Notes can be attributed.
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Class A Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Class A Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Class A Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Class A Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Class A Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Class A Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Class A Certificates, transfer, deposit or otherwise convey any Class A Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Class A Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Class A Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Class A Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the TrustTrust or the Transferor.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the United Kingdom. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (the “EUWA”); (ii) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law by virtue of the EUWA; or (iii) not a qualified investor as defined in Regulation (EU) 2017/1129 (as amended) as it forms part of domestic law by virtue of the EUWA, and the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe for the Certificates.
(i) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the European Economic Area (the “EEA”). For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); ;
(ii) a customer within the meaning of Directive 2002/92/EC (as amended)the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II II; or (iii) not a qualified investor as defined in Directive 2003/71/EC Regulation (EU) 2017/1129 (as amended), and the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe for the Certificates.
(ij) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Class A Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Class A Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Class A Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and acknowledges to, and agrees with, the Company and Braskem that:
(a) it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any Free Writing Prospectus (which term includes, for purposes of this Section 4(a), use of any written information furnished to the Commission by Braskem or the Company and not incorporated by reference into the Registration Statement and any press release issued by Braskem or the Company), other than a Free Writing Prospectus that it will would not, at any as a result of use by such time that Underwriter, trigger an obligation to file such Underwriter is acting as an “underwriter” Free Writing Prospectus with the Commission pursuant to Rule 433 (as defined other than a Free Writing Prospectus permitted under clause (b)). It will, pursuant to reasonable procedures developed in Section 2(a)(11) good faith, retain copies of each Free Writing Prospectus used or referred to by it, in accordance with Rule 433 under the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.;
(fb) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly without the prior written consent of Braskem or indirectlythe Company, offer, sell or deliver use any Free Writing Prospectus that contains the final terms of the Certificates or distribute the Prospectus, the Ratings Notes unless such terms have previously been included in a Free Writing Prospectus, Preliminary Prospectus or filed with the Commission;
(c) it is not subject to any other pending proceeding under Section 8A of the Securities Act with respect to the offering material (and will promptly notify the Company if any such proceeding against it is initiated during the period in which a prospectus relating to the Certificates in or from any jurisdiction except Securities is required to be delivered under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.Securities Act);
(gd) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions in relation to each Member State of the Financial Services European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), that with effect from and Markets Xxx 0000, as amended including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “FSMARelevant Implementation Date”), with respect it has not made and will not make an offer of Notes to anything done the public in that Relevant Member State other than:
(A) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(B) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the Underwriter or Underwriters nominated by it the Company for any such offer; or
(C) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of Notes shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Notes to the public” in relation to any Certificates inNotes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes, from or otherwise involving as the United Kingdomsame may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State; “Prospectus Directive” means European Council Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in the Relevant Member State; and “2010 PD Amending Directive” means Directive 2010/73/EU;
(iie) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the United Kingdom Financial Services and Markets Xxx 0000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.Company or Braskem; and it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom;
(hf) Each Underwriterthe offering and sale of the Notes may only be made in Switzerland on the basis of a private placement, severally and not jointly, represents, warrants and agrees that as a public offering;
(g) it has not offered, offered or sold or otherwise made available and will not offeroffer or sell Notes in Hong Kong, sell or otherwise make available by means of any Certificates document, other than (a) to any retail investor in the EEA. For the purposes of this provision, the expression “retail investorprofessional investors” means a person who is one (or more) of the following: (i) a retail client as defined in point the Securities and Futures Ordinance (11Cap. 571) of Article 4(1Hong Kong and any rules made under that Ordinance; or (b) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer Hong Kong or which do not constitute an offer to the public within the meaning of Directive 2002/92/EC (as amended)that Ordinance; and it has not issued or had in its possession for the purposes of issue in Hong Kong or elsewhere and will not issue or hold for the purpose of issue in Hong Kong or elsewhere the Registration Statement, where that customer would not qualify as a professional client as defined the General Disclosure Package or in point (10) of Article 4(1) of MiFID II the Prospectus, any advertisement, invitation or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior document relating to the Closing DateNotes which is directed at, and thereafteror the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11securities laws of Hong Kong) of the Act other than with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) Notes which are or are intended to any Rating Agency be disposed of only to persons outside Hong Kong or any other only to “nationally recognized statistical rating organizationprofessional investors” (within the meaning of the Exchange Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules made under that Ordinance;
(h) the Notes will be and have been offered in Singapore pursuant to the exemptions under Section 274 and Section 275 of the Securities and Futures Act, Chapter 289 of Singapore (the “SFA”); accordingly, it will not circulate or distribute the Registration Statement, the General Disclosure Package or in the Prospectus or any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Notes, nor will it offer or sell the Notes, or make the Notes the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (1) to an institutional investor specified in Section 274 of the SFA, (2) to a relevant person pursuant to Section 275(1), or any person pursuant to Section 275(1A), and (b) will not participate in any oral communication of Rating Information accordance with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning conditions, specified in Section 275 of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the CertificatesSFA, or (b3) undertaking credit rating surveillance on otherwise pursuant to, and in accordance with the Certificatesconditions of, including information about the characteristics and performance any other applicable provision of the ReceivablesSFA;
(i) it has not offered or sold, and will not offer or sell, any Notes in Brazil, except in circumstances that do not constitute a public offering or distribution under Brazilian laws and regulations; and
(j) it has not made an invitation, and will not make an invitation, to the public in the Cayman Islands to subscribe for the Notes.
Appears in 1 contract
Samples: Underwriting Agreement (Braskem Sa)
Offering by Underwriters. (a) It is understood that, after Upon the Effective Dateauthorization by the Representatives of the release of the Notes, the several Underwriters propose to offer the Certificates Notes for sale to upon the public as terms and conditions set forth in this Agreement and the Preliminary Prospectus.
(ba) Other than Each Underwriter, severally and not jointly, represents, warrants, covenants and agrees with the Depositor and Verizon Wireless that:
(i) other than the Preliminary Prospectus and the Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, prepared, authorized, approved, disseminated approved or referred to and will not prepare, make, use, authorize, approve, disseminate approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesNotes, including including, but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Securities Act unless such Underwriter has obtained the prior written approval of Verizon Wireless and the TransferorDepositor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors without the consent of Verizon Wireless, the Depositor or any of their respective affiliates one or more “written communications” (as defined in Rule 405 under the Securities Act) containing no more in the form of (a) information included in the Time of Sale Information, (b) information customarily included in confirmations of sales of securities and notices of allocations, (c) certain Intex.cdi files relating to the Receivables that does not contain any Issuer Information (as defined below) other than Issuer Information included in the following: Preliminary Prospectus previously filed with the Commission, (id) information contemplated by Rule 134 under the Securities Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (iie) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Bloomberg Screen (each such communicationother written communication enumerated in this Section 4(a)(i), an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus). As used herein, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for term “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Issuer Information” means any oral or written information provided of the type specified in clauses (1) – (5) of footnote 271 of Commission Release No. 33-8591 (Securities Offering Reform), other than Underwriter Derived Information. As used herein, the term “Underwriter Derived Information” shall refer to a Rating Agency for information of the purpose type described in clause (5) of footnote 271 of Commission Release No. 33-8591 (aSecurities Offering Reform) determining the initial credit rating for the Certificateswhen prepared by any Underwriter, including information about traditional computational and analytical materials prepared by the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.Underwriter;
Appears in 1 contract
Samples: Underwriting Agreement (Verizon Owner Trust 2020-B)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the European Economic Area (the “EEA”). For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iii LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Certificates Notes for sale to the public as set forth in the Preliminary ProspectusTime of Sale Information and the Prospectus and that the Underwriters will not offer, sell or otherwise distribute the Notes (except for the sale thereof in exempt transactions) in any state in which the Notes are not exempt from registration under state securities laws or blue sky laws (except where the Notes will have been qualified for offering and sale at the direction of the Underwriters under such state securities laws or blue sky laws). In connection with such offering(s), each Underwriter agrees to provide the Depositor with information related to the offer and sale of the Notes that is reasonably requested by the Depositor, from time to time (but not in excess of three years from the Closing Date), and necessary for complying with its tax reporting obligations, including, without limitation, the issue price of the Notes.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Each Underwriter severally and not jointly represents, warrants and covenants agrees that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation transfer any Note or interest therein in the initial sale or transfer of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Note by such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more an amount less than the following: (i) information contemplated by Rule 134 under the Act and included or minimum denomination for such Note to be included set forth in the Preliminary Prospectus, the Ratings Issuer Free Writing Prospectus or and the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of saleProspectus Supplement.
(c) Each Underwriter severally and not jointly represents and further agrees that (i) that if it did not enter into any contract delivers to an investor the Prospectus in portable document format (“PDF”), upon such Underwriter’s receipt of sale a request from the investor within the period for any Certificates prior which delivery of the Prospectus is required, the Underwriter will promptly deliver or cause to be delivered to the Time investor, without charge, a paper copy of Sale the Prospectus and (ii) that, during the period prior it will provide to the filing of the final Prospectus Depositor any Underwriter Free Writing Prospectuses (as notified defined in Section 9(a)), or portions thereof, which the Depositor is required to file with the Commission in electronic format and will use reasonable efforts to provide to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at Depositor such Underwriter Free Writing Prospectuses, or prior portions thereof, in either Microsoft Word® or Microsoft Excel® format and not in a PDF, except to the time of extent that the contract of sale for Depositor, in its sole discretion, waives such investorrequirements.
(d) Each Underwriter severally represents and not jointly representswarrants to, warrants and agrees with, the Depositor, as of the date of the applicable Terms Agreement and as of the Closing Date, that:
(i) In relation to each Underwriter Free Writing Prospectus prepared by it will not, as Member State of the date such Underwriter Free Writing European Economic Area which has implemented the Prospectus was conveyed or delivered to any prospective purchaser Directive (each, a “Relevant Member State”), it has not made and will not make an offer of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement Notes to the extent such misstatements or omissions were the result of any inaccurate information public in that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably Relevant Member State prior to the time publication of first use a prospectus in relation to the Notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the relevant implementation date, make an offer of such Underwriter Free Writing ProspectusNotes to the public in that Relevant Member State at any time:
(A) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(B) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; and(2) a total balance sheet of more than €43,000,000; and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(C) in any other circumstances which do not require the publication by the issuer of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this representation, the expression an “offer of Notes to the public” in relation to any Notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe the Notes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, and the expression “Prospectus Directive” means the European Commission Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) It has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the United Kingdom Financial Services and Markets Xxx 0000 (the “FSMA”)) received by it in connection with the issue or sale of any Certificates the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer.
(hiii) Each Underwriter, severally and not jointly, represents, warrants and agrees that it It has not offered, sold or otherwise made available complied and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) comply with all applicable provisions of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act FSMA with respect to the Certificates, anything done by it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond relation to the oral communication with a designated representative Notes in, from or otherwise involving the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesUnited Kingdom.
Appears in 1 contract
Samples: Underwriting Agreement (Wells Fargo Student Loans Receivables I LLC)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwritercovenants, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.Company and AHFC that:
(fa) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (activity, within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended (the “FSMA) ”), received by it in connection with the issue or sale of any Certificates Underwritten Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.Trust or the depositor; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Underwritten Notes in, from or otherwise involving the United Kingdom;
(hb) Each Underwriterin relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, severally a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not jointlymade and will not make an offer of Underwritten Notes to any person in that Relevant Member State; provided that no such offer of Underwritten Notes shall require the Trust, represents, warrants and agrees that the depositor or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive; and
(c) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates Underwritten Notes to any “retail investor investor” in the EEAEuropean Economic Area. For the purposes of this provision, Section 4 of this Agreement: (1) the expression “retail investor” means a person who is one (or more) of the following: (iA) a “retail client client” as defined in point Point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID MIFID II”); or (iiB) a customer “customer” within the meaning of Directive 2002/92/EC (known as the Insurance Mediation Directive) as amended), where that customer would not qualify as a “professional client client” as defined in point Point (10) of Article 4(1) of MiFID II MIFID II; or (iiiC) not a “qualified investor investor” as defined in the Prospective Directive; (2) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Underwritten Notes to be offered so as to enable an investor to decide to purchase or to subscribe for the Underwritten Notes; and (3) the expression “Prospectus Directive” means Directive 2003/71/EC (as amended)amended or superseded) and includes any relevant implementing measure in each Relevant Member State.
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (Honda Auto Receivables 2018-4 Owner Trust)
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Time of Sale Information and the Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(ea) Each Underwriter, severally and not jointly, represents, warrants and agrees with the Depositor and the Sponsor that it will not, at if any such time that such Underwriter is acting as an “underwriter” (as defined Notes are offered in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.United Kingdom:
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and it will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Certificates of the Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuing Entity or the Depositor; and
(ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.
(hb) Each Underwriter, severally and not jointly, represents, warrants and agrees with the Depositor and the Sponsor that if any Notes are offered in the European Economic Area, it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in an offer of Notes which are the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) subject of the following: offering contemplated by the Prospectus to the public in any country that is a member of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each, a “Relevant Member State”) other than:
(i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not to any legal entity which is a qualified investor as defined in Directive 2003/71/EC (as amendedand amendments thereto, including by Directive 2010/73/EU and including any relevant implementing measure in the Relevant Member State) (the “Prospectus Directive”).;
(iii) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on to fewer than 150 natural or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” legal persons (other than qualified investors as defined in Section 2(a)(11the Prospectus Directive), subject to obtaining the prior consent of the relevant underwriter or underwriters nominated by the Issuing Entity for any such offer; or
(iii) in any other circumstances falling within Article 3(2) of the Act with respect Prospectus Directive; provided that no such offer of Notes shall require the Issuing Entity, the Depositor or any underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this Section 4(b), an “offer of Notes to the Certificates, it (a) will not deliver any Rating Information (as defined below) public” in relation to any Rating Agency or Notes in any other “nationally recognized statistical rating organization” (within Relevant Member State means the meaning communication in any form and by any means of sufficient information on the terms of the Exchange Act), offer and (b) will not participate in any oral communication of Rating Information with any Rating Agency the Notes to be offered so as to enable an investor to decide to purchase or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond subscribe to the oral communication with a designated representative from Notes, as the Bank or same may be varied in that Relevant Member State by any measure implementing the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesProspectus Directive in that Relevant Member State.
Appears in 1 contract
Samples: Underwriting Agreement (Mercedes-Benz Auto Lease Trust 2016-A)
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Underwritten Public Certificates for sale to the public as set forth in the Preliminary ProspectusProspectus and that the Underwriters will not offer, sell or otherwise distribute the Underwritten Public Certificates (except for the sale thereof in exempt transactions) in any state in which the Underwritten Public Certificates are not exempt from registration under "blue sky" or state securities laws (except where the Underwritten Public Certificates will have been qualified for offering and sale at the Underwriters' direction under such "blue sky" or state securities laws).
(b) Other than (i) In the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “event that an Underwriter used a "road shows” show" (as defined in Rule 433(h433(h)(4) under the Act) relating in connection with the offering of the Public Certificates, the Underwriter agrees that all information in such road show shall be provided orally only and not as a "written communication" (as defined in Rule 405 under the Act). Each Underwriter agrees that any slideshow used in connection with a road show (i) shall only be provided as part of the road show and not separately, (ii) if handed out at any meeting as a hard copy, shall be retrieved prior to the Certificates authorized or approved by end of the Transferor meeting and (iii) will otherwise be used only in a manner that does not cause the “Permitted Additional Information”slideshow to be treated as a "free writing prospectus" (as defined in Rule 405 under the Act), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to .
(c) If any “"written communication” " (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy in connection with the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval offering of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Public Certificates (each such communication, contains an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any omits to state a material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectusstatements, in light of the circumstances under which they were made, not misleading; providedmisleading at the time that a Contract of Sale was entered into, howeverwhen taken together with all information that was conveyed to any person with whom a Contract of Sale was entered into, then the applicable Underwriter shall provide any such person with the following:
(i) Adequate disclosure of the contractual arrangement;
(ii) Adequate disclosure of the person's rights under the existing Contract of Sale at the time termination is sought;
(iii) Adequate disclosure of the new information that no Underwriter makes such representation, warranty or agreement is necessary to correct the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to given at the time of first use of such Underwriter Free Writing Prospectusthe original Contract; and
(iiiv) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in A meaningful ability to elect to terminate or not terminate the form prior Contract of Sale and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and elect to enter into or not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates enter into a trust or other type new Contract of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the TransferorSale.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (Cwabs Inc)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”)Prospectus, each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesNotes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Notes prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Notes at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesNotes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesNotes, transfer, deposit or otherwise convey any Certificates Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Notes without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Notes or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.
Appears in 1 contract
Samples: Underwriting Agreement (American Express Issuance Trust)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Final Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Final Prospectus and the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and Sale, (ii) that, during the period prior to the filing of the final Final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract Contract of sale Sale (within the meaning of Rule 159 under the Act) for such investorinvestor and (iii) that it will deliver any final Corrected Prospectus (and any information 12 Underwriting Agreement-Series 2022-1 that corrects any material misstatements or omissions) to each investor at least 48 hours before the new Time of Sale.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Final Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer or the Transferor, and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom.
(h) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates Notes to any UK retail investor in the EEAUnited Kingdom. For the purposes of this provision, :
(i) the expression “UK retail investor” means a person who is one (or more) of the following: (A) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of the domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Xxx 0000, as amended (the “EUWA”); or (B) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of the domestic law of the United Kingdom by virtue of the EUWA; or (C) not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 (as amended) (the “Prospectus Regulation”) as it forms part of the domestic law of the United Kingdom by virtue of the EUWA; and
(ii) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes.
(i) Each Underwriter, severally, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Notes to any EU retail investor in the European Economic Area. For the purposes of this provision:
(i) the expression “EU retail investor” means a person who is one (or more) of the following: (A) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (iiB) a customer within the meaning of Directive 2002/92/EC (EU) 2016/97 (as amendedamended or superseded), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II II; or (iiiC) not a qualified investor as defined in Directive 2003/71/EC the Prospectus Regulation; and
(ii) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as amended)to enable an investor to decide to purchase or subscribe for the Notes.
(ij) Each Underwriter, severally and but not jointly, covenants with the Bank represents and the Transferor that on or prior to the Closing Dateagrees that, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) it has not delivered, and will not deliver without the prior written consent of the Transferor or the Bank, any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or the Bank, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Bank Transferor or the Transferor Bank or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral Hired NRSRO or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.other nationally recognized statistical 14 Underwriting Agreement-Series 2022-1
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after the Effective Date, that the Underwriters propose to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Time of Sale Information and the Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(ea) Each Underwriter, severally and not jointly, represents, warrants and agrees with the Depositor and the Sponsor that it will not, at if any such time that such Underwriter is acting as an “underwriter” (as defined Notes are offered in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.United Kingdom:
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and it will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Certificates of the Notes in circumstances in which which
Section 21(1) of the FSMA does not apply to the TrustIssuing Entity or the Depositor; and
(ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.
(hb) Each Underwriter, severally and not jointly, represents, warrants and agrees with the Depositor and the Sponsor (as defined in Section 5(a) below) that if any Notes are offered in the European Economic Area, it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in an offer of Notes which are the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) subject of the following: offering contemplated by the Prospectus to the public in any country that is a member of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each, a “Relevant Member State”) other than:
(i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not to any legal entity which is a qualified investor as defined in Directive 2003/71/EC (as amendedand amendments thereto, including by Directive 2010/73/EU and including any relevant implementing measure in the Relevant Member State) (the “Prospectus Directive”).;
(iii) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on to fewer than 150 natural or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” legal persons (other than qualified investors as defined in Section 2(a)(11the Prospectus Directive), subject to obtaining the prior consent of the relevant underwriter or underwriters nominated by the Issuing Entity for any such offer; or
(iii) in any other circumstances falling within Article 3(2) of the Act with respect Prospectus Directive; provided that no such offer of Notes shall require the Issuing Entity, the Depositor or any underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this Section 4(b), an “offer of Notes to the Certificates, it (a) will not deliver any Rating Information (as defined below) public” in relation to any Rating Agency or Notes in any other “nationally recognized statistical rating organization” (within Relevant Member State means the meaning communication in any form and by any means of sufficient information on the terms of the Exchange Act), offer and (b) will not participate in any oral communication of Rating Information with any Rating Agency the Notes to be offered so as to enable an investor to decide to purchase or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond subscribe to the oral communication with a designated representative from Notes, as the Bank or same may be varied in that Relevant Member State by any measure implementing the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesProspectus Directive in that Relevant Member State.
Appears in 1 contract
Samples: Underwriting Agreement (Mercedes-Benz Auto Lease Trust 2016-B)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Final Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Final Prospectus and the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and Sale, (ii) that, during the period prior to the filing of the final Final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract Contract of sale Sale (within the meaning of Rule 159 under the Act) for such investorinvestor and (iii) that it will deliver any final Corrected Prospectus (and any information that corrects any material misstatements or omissions) to each investor at least 48 hours before the new Time of Sale.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective 11 Underwriting Agreement-Series 2021-1 purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Final Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer or the Transferor, and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom.
(h) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates Notes to any UK retail investor in the EEAUnited Kingdom. For the purposes of this provision, :
(i) the expression “UK retail investor” means a person who is one (or more) of the following: (A) a retail client, as defined in point (8) of Article 2 of Regulation (EU) No 2017/565 as it forms part of the domestic law of the United Kingdom by virtue of the European 12 Underwriting Agreement-Series 2021-1 Union (Withdrawal) Xxx 0000, as amended (the “EUWA”); or (B) a customer within the meaning of the provisions of the FSMA and any rules or regulations made under the FSMA to implement Directive (EU) 2016/97 (as amended), where that customer would not qualify as a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of the domestic law of the United Kingdom by virtue of the EUWA; or (C) not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 (as amended) (the “Prospectus Regulation”) as it forms part of the domestic law of the United Kingdom by virtue of the EUWA; and
(ii) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe for the Notes.
(i) Each Underwriter, severally, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Notes to any EU retail investor in the European Economic Area. For the purposes of this provision:
(i) the expression “EU retail investor” means a person who is one (or more) of the following: (A) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or (iiB) a customer within the meaning of Directive 2002/92/EC (EU) 2016/97 (as amendedamended or superseded), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II II; or (iiiC) not a qualified investor as defined in Directive 2003/71/EC the Prospectus Regulation; and
(ii) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as amended)to enable an investor to decide to purchase or subscribe for the Notes.
(ij) Each Underwriter, severally and but not jointly, covenants with the Bank represents and the Transferor that on or prior to the Closing Dateagrees that, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) it has not delivered, and will not deliver without the prior written consent of the Transferor or the Bank, any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or the Bank, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Transferor or the Bank or refer such Hired NRSRO or other nationally recognized statistical rating organization to the Transferor or refer such Rating Agency to the TransferorBank, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the CertificatesUnderwritten Notes, including information about the characteristics of the Receivables and the legal structure of the CertificatesUnderwritten Notes, or as contemplated by Rule 17g-5(a)(3)(iii)(C), and (b) undertaking credit rating surveillance on the Certificates13 Underwriting Agreement-Series 2021-1 Underwritten Notes, including information about the characteristics and performance of the Receivables, as contemplated by Rule 17g-5(a)(3)(iii)(D).
Appears in 1 contract
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Final Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Final Prospectus and the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and Sale, (ii) that, during the period prior to the filing of the final Final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract Contract of sale Sale (within the meaning of Rule 159 under the Act) for such investorinvestor and (iii) that it will deliver any final Corrected Prospectus (and any information that corrects any material misstatements or omissions) to each investor at least 48 hours before the new Time of Sale.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Final Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer or the Transferor, and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom.
(h) Each With respect to each Member State of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each a “Relevant Member State”), each Underwriter, severally and not jointlyseverally, represents, warrants represents and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates Notes to any retail investor in the EEAEuropean Economic Area. For the purposes of this provision, the expression (a) “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); , (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in the Prospectus Directive and (b) “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe the Notes. The expression ‘‘Prospectus Directive’’ means Directive 2003/71/EC (as amended, including by Directive 2010/73/EU), and includes any relevant implementing measure in the Relevant Member State.
(i) Each Underwriter, severally and but not jointly, covenants with the Bank represents and the Transferor that on or prior to the Closing Dateagrees that, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) it has not delivered, and will not deliver without the prior written consent of the Transferor or the Bank, any written Rating Information (as defined below) to a Hired NRSRO or other nationally recognized statistical rating organization and (b) it has not communicated, and will not communicate without the prior written consent of the Transferor or the Bank, orally any Rating Agency Information to any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO or other nationally recognized statistical rating organization, such Underwriter is authorized to inform such Rating Agency Hired NRSRO or other nationally recognized statistical rating organization that it will respond to the oral communication with a designated representative from the Transferor or the Bank or refer such Hired NRSRO or other nationally recognized statistical rating organization to the Transferor or refer such Rating Agency to the TransferorBank, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the CertificatesUnderwritten Notes, including information about the characteristics of the Receivables and the legal structure of the CertificatesUnderwritten Notes, or as contemplated by Rule 17g-5(a)(3)(iii)(C), and (b) undertaking credit rating surveillance on the CertificatesUnderwritten Notes, including information about the characteristics and performance of the Receivables, as contemplated by Rule 17g-5(a)(3)(iii)(D).
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Issuance Trust)
Offering by Underwriters. Offering Communications; Free Writing Prospectuses.
(a) It is understood that, after by the Effective Date, parties hereto that the Underwriters propose to offer the Certificates Underwritten Securities for sale to the public as set forth in the Preliminary Prospectus, and each Underwriter agrees that all such offers and sales made by such Underwriter and its affiliates, if any, shall be made in compliance with all applicable laws and regulations.
(b) Other than Each Underwriter further agrees that, on or prior to the Closing Date, it shall provide the Company with a certificate, setting forth (a) in the case of each class of Certificates, (i) if less than 10% of the Preliminary ProspectusCertificate Principal Balance of such class of Certificates has been sold to the public as of such date, the fair market value (but not less than zero) of such class of Certificates as of the Closing Date, or (ii) if 10% or more of such class of Certificates has been sold to the public as of such date but no single price is paid for at least 10% of the aggregate principal balance of such class of Certificates, then the weighted average price at which the Certificates of such class were sold, expressed as a percentage of the Certificate Principal Balance of such class of Certificates sold, or (b) the first single price at which at least 10% of the Certificate Principal Balance of such class of Certificates was sold to the public, (c) the prepayment assumption used in pricing each class of Certificates, and (d) such other information as to matters of fact as the Company may reasonably request to enable it to comply with its reporting requirements with respect to each class of Certificates to the extent such information can in the good faith judgment of such Underwriter be determined by it.
(c) The Underwriters shall convey or deliver any written communication to any person (including through Bloomberg) in connection with the initial offering of the Underwritten Securities, only if such written communication is preceded or accompanied by a prospectus satisfying the requirements of Section 10(a) of the Act or only if such written communication (i) is made in reliance on Rule 134 under the Act, (ii) constitutes a prospectus satisfying the Ratings Free Writing Prospectus, requirements of Rule 430B under the Act or (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (constitutes a "free writing prospectus," as defined in Rule 405 under the Act) that constitutes an offer to sell Act (a "Free Writing Prospectus"). Without the prior written consent of the Company (which consent may be withheld for any reason), the Underwriters shall not convey or solicitation deliver in connection with the initial offering of an offer to buy the Certificates, including but not limited to Certificates any “"ABS informational and computational materials” material," as defined in Item 1101(a) of Regulation AB under the Act unless and the Exchange Act ("ABS Informational and Computational Material"), in reliance upon Rules 167 and 426 under the Act.
(i) Each Underwriter shall deliver to the Company, no later than two business days prior to the date of first use thereof, (A) any Free Writing Prospectus prepared by or on behalf of such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (contains any "issuer information," as defined in Rule 405 under the Act433(h)(2) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in footnote 271 of the Preliminary ProspectusCommission's Securities Offering Reform Release No. 33-8591 ("Issuer Information"), the Ratings and (B) any Free Writing Prospectus or portion thereof that contains only a description of the final terms of the Underwritten Securities.
(ii) Notwithstanding the provisions of Section 3(d)(i), any Free Writing Prospectus described therein that contains only ABS Informational and Computational Material may be delivered by an Underwriter to the Company not later than the later of (a) two business days prior to the due date for filing of the Prospectus pursuant to Rule 424(b) under the Act or (b) the date of first use of such Free Writing Prospectus, .
(e) Each Underwriter represents and warrants to the Company severally and not jointly that the Free Writing Prospectuses to be furnished to the Company by such Underwriter pursuant to Section 3(d)(i) or (ii) columns or other entries showing the status will constitute all Free Writing Prospectuses of the subscriptions, the expected pricing parameters, the weighted average life or the trade date type described therein that were furnished to prospective investors by such Underwriter in connection with its offer and sale of the Certificates Certificates. Each Underwriter further represents and warrants that it has not delivered any Free Writing Prospectuses to prospective investors other than the Free Writing Prospectus dated January 22, 2007 and a Term Sheet dated January 17, 2007.
(each such communication, f) The Company agrees to file with the Commission the following:
(i) Any Free Writing Prospectus that constitutes an “Underwriter "issuer free writing prospectus," as defined in Rule 433(h)(1) under the Act (an "Issuer Free Writing Prospectus”");
(ii) Any Free Writing Prospectus or portion thereof delivered by an Underwriter to the Company pursuant to Section 3(d) hereof; and
(iii) Any Free Writing Prospectus for which the Company or any person acting on its behalf provided, authorized or approved information that is prepared and (y) each Underwriter will be permitted to provide confirmations published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of salepublishing, radio or television broadcasting or otherwise disseminating communications.
(cg) Each Underwriter severally and Any Free Writing Prospectus required to be filed pursuant to Section 3(f) by the Company shall be filed with the Commission not jointly represents and agrees (i) that it did not enter into any contract later than the date of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing first use of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly representsFree Writing Prospectus, warrants and agrees except that:
(i) any Free Writing Prospectus or portion thereof required to be filed that contains only the description of the final terms of the Certificates may be filed by the Company within two days of the later of the date such final terms have been established for all classes of Certificates and the date of first use;
(ii) any Free Writing Prospectus or portion thereof required to be filed that contains only ABS Informational and Computational Material may be filed by the Company with the Commission not later than the later of the due date for filing the final Prospectus relating to the Certificates pursuant to Rule 424(b) under the Act or two business days after the first use of such Free Writing Prospectus;
(iii) any Free Writing Prospectus required to be filed pursuant to Section 3(f)(iii) may, if no payment has been made or consideration has been given by or on behalf of the Company for the Free Writing Prospectus or its dissemination, be filed by the Company with the Commission not later than four business days after the Company becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus; and
(iv) the Company shall not be required to file (A) Issuer Information contained in any Free Writing Prospectus of an offering participant other than the Trust, if such information is included or incorporated by reference in a prospectus or Free Writing Prospectus previously filed with the Commission that relates to the offering of the Certificates, or (B) any Free Writing Prospectus or portion thereof that contains a description of the Certificates or the offering of the Certificates which does not reflect the final terms thereof.
(h) Each Underwriter shall provide to the Company for filing with the Commission any Free Writing Prospectus that is used or referred to by it and distributed by or on behalf of such Underwriter in a manner reasonably designed to lead to its broad, unrestricted dissemination not later than the date of the first use of such Free Writing Prospectus.
(i) Notwithstanding the provisions of Section 3(h), each Underwriter shall provide to the Company for filing with the Commission any Free Writing Prospectus for which such Underwriter or any person acting on its behalf provided, authorized or approved information that is prepared and published or disseminated by a person unaffiliated with the Company or any other offering participant that is in the business of publishing, radio or television broadcasting or otherwise disseminating written communications and for which no payment was made or consideration given by or on behalf of the Company or any other offering participant, not later than four business days after such Underwriter becomes aware of the publication, radio or television broadcast or other dissemination of the Free Writing Prospectus.
(j) Notwithstanding the provisions of Sections 3(f) and 3(i), neither the Company nor any Underwriter shall be required to file any Free Writing Prospectus that does not contain substantive changes from or additions to a Free Writing Prospectus previously filed with the Commission.
(k) The Company and each Underwriter each agree that each Free Writing Prospectus prepared by such Underwriter shall contain the following legend, or a substantially similar legend that complies with Rule 433 under the Act: The depositor has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the depositor has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, xxx xepositor, any underwritex xx xxx xxaler participating in the offering will arrange to send you the prospectus if you request it will notby calling toll-free 1-866-884-2071. The Company and each Underwriter each agrex xxxx xxx Free Writing Prospectus prepared by such Underwriter and that is not an Issuer Free Writing Prospectus or that does not contain Issuer Information shall also contain the following legend: Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented herein, although that information may be based in part on loan level data provided by the issuer or its affiliates.
(l) In the event that the Company becomes aware that, as of the date such Underwriter Time of Sale, any Issuer Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include contains any untrue statement of a material fact or omit any omits to state a material fact necessary in order to make the statements contained therein, therein (when read together in conjunction with the Preliminary Time of Sale Information), in light of the circumstances under which they were made, not misleading (a "Defective Issuer Free Writing Prospectus"), the Company shall notify each Underwriter within one business day after discovery and the Company shall, if requested by such Underwriter, prepare and deliver to such Underwriter a Free Writing Prospectus that corrects the material misstatement or omission in the Defective Issuer Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a "Corrected Issuer Free Writing Prospectus").
(m) In the event that an Underwriter becomes aware that, as of the Time of Sale, any Free Writing Prospectus prepared by or on behalf of such Underwriter delivered to an investor in any Underwritten Securities contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained therein (when read in conjunction with the Time of Sale Information), in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to when considered in conjunction with the extent such misstatements or omissions were the result Time of any inaccurate information that was included in the Preliminary Sale Information (together with a Defective Issuer Free Writing Prospectus, a "Defective Free Writing Prospectus"), such Underwriter shall notify the Ratings Company thereof within one business day after discovery.
(n) Each Underwriter shall, if requested by the Company:
(i) if the Defective Free Writing Prospectus was a Free Writing Prospectus prepared by or on behalf of such Underwriter, prepare a Free Writing Prospectus which corrects the material misstatement in or omission from the Defective Free Writing Prospectus or any inaccurate information furnished (together with a Corrected Issuer Free Writing Prospectus, a "Corrected Free Writing Prospectus");
(ii) deliver the Corrected Free Writing Prospectus to each investor which received the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably Defective Free Writing Prospectus prior to entering into a contract of sale with such investor;
(iii) notify such investor in a prominent fashion that the time prior contract of first use sale with the investor has been terminated, and of the investor's rights as a result of termination of such Underwriter agreement;
(iv) provide such investor with an opportunity to affirmatively agree to purchase the Underwritten Securities on the terms described in the Corrected Free Writing Prospectus; and
(iiv) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance comply with the Rules and Regulations any other requirements for reformation of the Actoriginal contract of sale with such investor, and shall otherwise conform to any requirements for “free writing prospectuses” under as described in Section IV.A.2.c of the ActCommission's Securities Offering Reform Release No. 33-8591.
(eo) Each Underwriter, severally The Company and each Underwriter agree to retain all Free Writing Prospectuses that they have used and that are not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in required to be filed pursuant to this Section 2(a)(11) 4 for a period of three years following the initial bona fide offering of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the TransferorUnderwritten Securities.
(fp) Each Underwriter, severally and Underwriter covenants with the Company that after the Prospectus is available such Underwriter shall not jointly, represents, warrants and agrees that it has not and will not, directly distribute any written information concerning the Underwritten Securities to a prospective purchaser of Certificates unless such information is preceded or indirectly, offer, sell or deliver any of the Certificates or distribute accompanied by the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(gq) Each Underwriter, severally and not jointly, represents, warrants Underwriter represents and agrees that it that:
(i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMAFinancial Services and Markets Act) received by it in connection with the issue or sale of any Certificates the Underwritten Securities in circumstances in which Section 21(1) of the FSMA Financial Services and Markets Act does not apply to the Trust.Issuer;
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally it has complied and not jointly, covenants will comply with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) all applicable provisions of the Financial Services and Markets Act with respect to anything done by it in relation to the CertificatesUnderwritten Securities in, from or otherwise involving the United Kingdom; and
(iii) in relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a "Relevant Member State"), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the "Relevant Implementation Date") it (a) has not made and will not deliver make an offer of Underwritten Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Underwritten Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Underwritten Securities to the public in that Relevant Member State at any Rating Information time:
(as defined belowx) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(y) to any Rating Agency legal entity which has two or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose more of (a1) determining an average of at least 250 employees during the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.last financial year;
Appears in 1 contract
Samples: Underwriting Agreement (Luminent Mortgage Trust 2007-1)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates Underwritten Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Final Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Final Prospectus and the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesUnderwritten Notes, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus, (ii) the weighted average life, pot/retention allocation, expected settlement date and expected pricing information with respect to the Underwritten Notes or (iiiii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates Underwritten Notes (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates Underwritten Notes prior to the Time of Sale and Sale, (ii) that, during the period prior to the filing of the final Final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates Underwritten Notes at or prior to the time of the contract Contract of sale Sale (within the meaning of Rule 159 under the Act) for such investorinvestor and (iii) that it will deliver any final Corrected Prospectus (and any information that corrects any material misstatements or omissions) to each investor at least 48 hours before the new Time of Sale.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of CertificatesUnderwritten Notes, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus or any inaccurate information furnished to the Underwriter by the Transferor or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor or the Bank to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesUnderwritten Notes, transfer, deposit or otherwise convey any Certificates Underwritten Notes into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates Underwritten Notes without the prior written consent of the Transferor, which consent shall not be unreasonably withheld.
(f) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates Underwritten Notes or distribute the Prospectus, the Ratings Free Writing Final Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates Underwritten Notes in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointlyseverally, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”)) received by it in connection with the issue or sale of any Certificates Notes in circumstances in which Section 21(1) of the FSMA does not apply to the TrustIssuer or the Transferor, and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Notes in, from or otherwise involving the United Kingdom.
(h) Each With respect to each Member State of the European Economic Area which has implemented the Prospectus Directive (as defined below) (each a “Relevant Member State”), each Underwriter, severally and not jointlyseverally, represents, warrants represents and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates Notes to any retail investor in the EEAEuropean Economic Area. For the purposes of this provision, the expression (a) “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); , (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in the Prospectus Directive and (b) “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Notes to be offered so as to enable an investor to decide to purchase or subscribe the Notes. The expression ‘‘Prospectus Directive’’ means Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Actincluding by Directive 2010/73/EU), and (b) will not participate includes any relevant implementing measure in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesRelevant Member State.
Appears in 1 contract
Samples: Underwriting Agreement (Barclays Dryrock Funding LLC)
Offering by Underwriters. (a) It is understood that, after the Effective Date, the Underwriters propose to offer the Certificates for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor Transferors (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the TransferorTransferors; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the TransferorTransferors) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor Transferors expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferors to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the TransferorTransferors.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor Transferors except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each With respect to each Member State of the European Economic Area which has implemented the Prospectus Derivative (each a “Relevant Member State”), each Underwriter, severally and not jointly, represents, warrants and agrees that with effect from and including the date on which the Prospectus Directive was implemented in that Relevant Member State (the “Relevant Implementation Date”), it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any an offer of Certificates to the public in that Relevant Member State except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates to the public in that Relevant Member State (i) at any retail investor time to any legal entity which is a “qualified investor” as defined in the EEAProspectus Directive; (ii) at any time to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of Directive 2010/73/EU, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive); or (iii) at any time in any other circumstances falling within Article 3(2) of the Prospectus Directive; provided that no such offer of Certificates shall require the Trust or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive. For the purposes of this provision, (A) the expression “retail investoroffer any Certificates to the public” in relation to any Certificates in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe the Certificates, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, (B) the expression “Prospectus Directive” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended)and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in the Relevant Member State, (C) the expression “2010 PD Amending Directive” means Directive 2010/73/EU, and (D) the countries comprising the “European Economic Area” are Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
(i) Each Underwriter, severally and not jointly, covenants with the Bank Banks and the Transferor Transferors that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivables.nationally
Appears in 1 contract
Samples: Underwriting Agreement (American Express Receivables Financing Corp Iv LLC)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates that are Registered Certificates for sale to the public as set forth in the Preliminary Final Prospectus.
(b) Other than Each Underwriter severally covenants and agrees with the Company as to itself that:
(i) Unless preceded or accompanied by a prospectus satisfying the Preliminary requirements of Section 10(a) of the Securities Act or access thereto is made available pursuant to Rule 173 of the Securities Act, the Underwriter shall not convey or deliver any written communication to any person in connection with the initial offering of the Certificates, unless such written communication (1) is made in reliance on Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying the requirements of Rule 430B under the Securities Act or (3) is a Free Writing Prospectus, .
(ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating An Underwriter may convey a Preliminary Term Sheet to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred a potential investor prior to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation entering into a Contract of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless Sale with such Underwriter has obtained the prior written approval of the Transferorinvestor; provided, however, that (x) each such Underwriter may prepare and convey to one or more shall not enter into a Contract of its potential investors one or more “written communications” (as defined in Rule 405 under Sale with such investor unless the Act) containing no more than the following: Underwriter has complied with paragraph (i) information contemplated by Rule 134 under the Act and included or above prior to be included in the Preliminary Prospectussuch Contract of Sale, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each such Underwriter will be permitted shall deliver a copy of the proposed Preliminary Term Sheet to provide confirmations of salethe Depositor and its counsel prior to the anticipated first use and shall not convey any such Preliminary Term Sheet to which the Depositor or its counsel reasonably objects.
(ciii) Each An Underwriter severally and not jointly represents and agrees may convey Computational Materials (ix) that it did not enter into any contract of sale for any Certificates to a potential investor prior to the Time entering into a Contract of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for with such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no (A) such Underwriter makes shall not enter into a Contract of Sale with such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to investor unless the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance has complied with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwriter, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.
(f) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it paragraph (i) has complied and will comply with all applicable provisions above prior to such Contract of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, Sale and (iiB) has only communicated or caused such Computational Materials shall not be disseminated in a manner reasonably designed to be communicated and will only communicate or cause lead to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communicationits broad unrestricted dissemination; provided, however, that if an Underwriter receives an oral communication from such Computational Materials are disseminated in a Rating Agencymanner reasonably designed to lead to its broad unrestricted dissemination, such Underwriter shall file with the Commission such Computational Materials, and (y) to an investor after a Contract of Sale, provided that the Underwriter has complied with paragraph (i) above in connection with such Contract of Sale. The Underwriter shall keep sufficient records of any conveyance of Computational Materials to potential or actual investors and shall maintain such records as required by the Rules and Regulations.
(iv) If an Underwriter does not furnish a Free Writing Prospectus that is authorized required to inform be filed with the Commission to the Depositor’s counsel prior to the scheduled print date of the Final Prospectus, such Rating Agency Underwriter will be deemed to have represented that it will respond did not convey any such Free Writing Prospectus to any potential investor.
(v) Each Free Writing Prospectus shall contain legends that are substantially similar to the oral communication following: The issuer has filed a registration statement (including a prospectus) with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency SEC for the purpose of (a) determining offering to which this free writing prospectus relates. Before you invest, you should read the initial credit rating base prospectus in that registration statement and other documents the issuer has filed with the SEC for the Certificates, including more complete information about the characteristics of the Receivables issuer and the legal structure of the Certificates, or (b) undertaking credit rating surveillance this offering. You may get these documents for free by visiting EXXXX on the CertificatesSEC website at wxx.xxx.xxx. Alternatively, including the issuer, any underwriter or any dealer participating in the offering will arrange to send you the base prospectus if you request it by calling toll-free 1-877-858-5407. This free writing prospectus is not required to contain all information that is required to be included in the base prospectus. The information in this free writing prospectus is preliminary and is subject to completion or change. The information in this free writing prospectus, if conveyed prior to the time of your commitment to purchase, supersedes information contained in any prior similar free writing prospectus relating to these securities. This free writing prospectus is not an offer to sell or a solicitation of an offer to buy these securities in any state where such offer, solicitation or sale is not permitted. This free writing prospectus is being delivered to you solely to provide you with information about the characteristics and performance offering of the Receivablesoffered certificates referred to in this free writing prospectus and to solicit an indication of your interest in purchasing such offered certificates, when, as and if issued. Any such indication of interest will not constitute a contractual commitment by you to purchase any of the offered certificates. You may withdraw your indication of interest at any time.
(vi) Any Computational Materials shall include legends, in addition to those specified in paragraph (vi) above, substantially similar to the following: The information in this free writing prospectus may be based on preliminary assumptions about the pool assets and the structure. Any such assumptions are subject to change. The information in this free writing prospectus may reflect parameters, metrics or scenarios specifically requested by you. If so, prior to the time of your commitment to purchase, you should request updated information based on any parameters, metrics or scenarios specifically required by you. Neither the issuer of the securities nor any of its affiliates prepared, provided, approved or verified any statistical or numerical information presented in this free writing prospectus, although that information may be based in part on loan level data provided by the issuer or its affiliates.
(vii) Each Underwriter severally agrees to retain all Free Writing Prospectuses that it has used and that are not filed pursuant to this Section 4 for a period of three years following the initial bona fide offering of the Registered Certificates.
(c) The following terms shall have the meanings set forth below, unless the context clearly indicates otherwise:
Appears in 1 contract
Samples: Underwriting Agreement (Citigroup Mortgage Loan Trust Inc., Series 2006-Ar2)
Offering by Underwriters. (a) It is understood that, that after the Effective Date, the Underwriters propose each Underwriter proposes to offer the Certificates Notes for sale to the public (which may include selected dealers) as set forth in the Preliminary Prospectus.
(b) Each Underwriter shall comply with all applicable laws and regulations in connection with its use of Free Writing Prospectuses, including but not limited to Rules 164 and 433 of the Act.
(c) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus Additional Information and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or other information approved by the Transferor (the “Permitted Additional Information”)Transferor, each Underwriter severally and not jointly represents, warrants and covenants agrees with the Transferor and the Bank that it has not prepared, made, used, prepared, authorized, approved, disseminated approved or referred to and will not prepare, make, use, prepare, authorize, approve, disseminate approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the CertificatesNotes, including including, but not limited to to, any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained Act. Notwithstanding the prior written approval of foregoing, the Transferor; provided, however, Transferor agrees that (x) each Underwriter the Underwriters may prepare and convey disseminate information on Bloomberg to one or more of its potential prospective investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: relating solely to (i) information contemplated by of the type identified in Rule 134 under of the Act and included or to be Act, (ii) information included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (iiiii) columns or other entries showing the status of allocations and subscriptions of the subscriptionsNotes, the expected pricing parameters, parameters of the Notes and the yields and weighted average life or the trade date lives of the Certificates Notes, and (iv) information constituting final terms of the Notes within the meaning of Rule 433(d)(5)(ii) under the Act (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations ); provided that in the case of sale.
(c) Each Underwriter severally and not jointly represents and agrees the foregoing clauses (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and through (ii) thativ), during the period prior to the filing of other than the final pricing terms, such Underwriter Free Writing Prospectus (as notified would not be required to be filed with the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investorCommission.
(d) Each Underwriter severally and not jointly represents, warrants and agrees with the Transferor, the Issuer and the Bank that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificatesthe Notes, include any untrue statement of a material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that which was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate written information furnished to the related Underwriter by the Transferor Transferor, the Issuer or the Bank expressly for use therein, which information was not corrected by information subsequently provided by the Transferor Transferor, the Issuer or the Bank to the related Underwriter reasonably within a reasonable period of time prior to the time of first use of such Underwriter Free Writing Prospectus; and;
(ii) if required by Rule 433(c)(2)(i) of the Act, each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations Rule 433(c)(2)(i) of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act; and
(iii) each Underwriter Free Writing Prospectus prepared by it shall be delivered to the Transferor no later than the date of first use and, unless otherwise agreed to by the Transferor and the related Underwriter, such delivery shall occur no later than the close of business for the Bank (Central Time) on the date of first use; provided, however, if the date of first use is not a Business Day, such delivery shall occur no later than the close of business for the Bank (Central Time) on the first Business Day after such date of first use.
(e) Each Underwriter, severally and not jointly, represents, warrants Underwriter represents and agrees (i) that it will notdid not enter into any Contract of Sale for any Notes prior to the Time of Sale and (ii) that it will, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the CertificatesNotes, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without deliver the Preliminary Prospectus to each investor to whom Notes are sold by it during the period prior written consent to the filing of the Transferorfinal Prospectus (as notified to such Underwriter by the Transferor or by the Bank), which delivery shall be prior to the applicable time of any such Contract of Sale with respect to such investor.
(f) Each In the event the Bank, the Transferor or any Underwriter becomes aware that, as of the Time of Sale, any Time of Sale Information contains or contained any untrue statement of material fact or omits or omitted to state any material fact necessary in order to make the statements contained therein in light of the circumstances under which they were made, not misleading (“Defective Information”), such Underwriter, severally the Bank or the Transferor, as applicable, shall promptly notify the Representatives and, in the case of any Underwriter giving such notice, the Transferor, of such untrue statement or omission no later than one Business Day after discovery and not jointlythe Transferor shall prepare and deliver to the Underwriters a Corrected Prospectus. Each Underwriter shall deliver such Corrected Prospectus to any person with whom a Contract of Sale was entered into based on such Defective Information, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver such Underwriter shall provide any such person with adequate disclosure of the Certificates person’s rights under the existing Contract of Sale and a meaningful ability to elect to terminate or distribute not terminate the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus prior Contract of Sale and to elect to enter into or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best not enter into a new Contract of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations Sale based on the Transferor except as information set forth hereinin the Corrected Prospectus.
(g) Each Underwriter, severally and not jointly, represents, warrants represents and agrees that it that, (ia) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of any Certificates in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.
(h) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not offereddelivered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates to any retail investor in deliver without the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) prior written consent of the following: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amendedBank, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not a qualified investor as defined in Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information to a Hired NRSRO or other nationally recognized statistical rating organization and (as defined belowb) to it has not participated, and will not participate without the prior written consent of the Bank, in any oral communication regarding Rating Agency Information with any Hired NRSRO or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will not participate in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, howeverfor the avoidance of doubt, that if an Underwriter receives an oral communication from a Rating AgencyHired NRSRO, such Underwriter is authorized to inform such Rating Agency Hired NRSRO that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency Hired NRSRO to the TransferorBank, who will may respond to the oral communication. For purposes of this paragraph, “Rating Information” means any oral information, written or written information oral, provided to a Rating Agency for the purpose of Hired NRSRO that could reasonably be determined to be relevant to (a) determining the initial credit rating for the Certificates[Class A Notes] [Notes], including information about the characteristics of the Receivables and the legal structure of the Certificates[Class A Notes] [Notes], or and (b) undertaking credit rating surveillance on the Certificates[Class A Notes] [Notes], including information about the characteristics and performance of the Receivables, in each case as contemplated by Rule 17g5(a)(3)(iii)(C).
Appears in 1 contract
Samples: Underwriting Agreement (First National Master Note Trust)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwritercovenants, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.Company and AHFC that:
(fa) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (activity, within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended (the “FSMA) ”), received by it in connection with the issue or sale of any Certificates Underwritten Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.Trust or the depositor; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Underwritten Notes in, from or otherwise involving the United Kingdom;
(hb) Each Underwriterin relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, severally a “Relevant Member State”), with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State it has not jointlymade and will not make an offer of Underwritten Notes to any person in that Relevant Member State; provided that no such offer of Underwritten Notes shall require the Trust, represents, warrants and agrees that the depositor or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16 of the Prospectus Directive; and
(c) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates Underwritten Notes to any “retail investor investor” in the EEAEuropean Economic Area. For the purposes of this provision, Section 4 of this Agreement: (1) the expression “retail investor” means a person who is one (or more) of the following: (iA) a “retail client client” as defined in point Point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID MIFID II”); or (iiB) a customer “customer” within the meaning of Directive 2002/92/EC (known as the Insurance Mediation Directive) as amended), where that customer would not qualify as a “professional client client” as defined in point Point (10) of Article 4(1) of MiFID II MIFID II; or (iiiC) not a “qualified investor investor” as defined in the Prospective Directive; (2) the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Underwritten Notes to be offered so as to enable an investor to decide to purchase or to subscribe for the Underwritten Notes; and (3) the expression “Prospectus Directive” means Directive 2003/71/EC (as amended).
(i) Each Underwriter, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Actincluding y Directive 2010/73/EU), and (b) will not participate includes any relevant implementing measure in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the Receivableseach Relevant Member State.
Appears in 1 contract
Samples: Underwriting Agreement (Honda Auto Receivables 2018-1 Owner Trust)
Offering by Underwriters. (a) It is understood that, after that the Effective Date, the several Underwriters propose to offer the Certificates Underwritten Notes for sale to the public as set forth in the Preliminary Prospectus.
(b) Other than (i) the Preliminary Prospectus, (ii) the Ratings Free Writing Prospectus, (iii) the Prospectus and (iv) any materials included in one or more “road shows” (as defined in Rule 433(h) under the Act) relating to the Certificates authorized or approved by the Transferor (the “Permitted Additional Information”), each Underwriter severally and not jointly represents, warrants and covenants that it has not prepared, made, used, authorized, approved, disseminated or referred to and will not prepare, make, use, authorize, approve, disseminate or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Certificates, including but not limited to any “ABS informational and computational materials” as defined in Item 1101(a) of Regulation AB under the Act unless such Underwriter has obtained the prior written approval of the Transferor; provided, however, that (x) each Underwriter may prepare and convey to one or more of its potential investors one or more “written communications” (as defined in Rule 405 under the Act) containing no more than the following: (i) information contemplated by Rule 134 under the Act and included or to be included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus, or (ii) columns or other entries showing the status of the subscriptions, the expected pricing parameters, the weighted average life or the trade date of the Certificates (each such communication, an “Underwriter Free Writing Prospectus”) and (y) each Underwriter will be permitted to provide confirmations of sale.
(c) Each Underwriter severally and not jointly represents and agrees (i) that it did not enter into any contract of sale for any Certificates prior to the Time of Sale and (ii) that, during the period prior to the filing of the final Prospectus (as notified to the Underwriters by the Transferor) it will deliver the Preliminary Prospectus to each investor to whom it sells Certificates at or prior to the time of the contract of sale for such investor.
(d) Each Underwriter severally and not jointly represents, warrants and agrees that:
(i) each Underwriter Free Writing Prospectus prepared by it will not, as of the date such Underwriter Free Writing Prospectus was conveyed or delivered to any prospective purchaser of Certificates, include any untrue statement of material fact or omit any material fact necessary to make the statements contained therein, when read together with the Preliminary Prospectus, in light of the circumstances under which they were made, not misleading; provided, however, that no Underwriter makes such representation, warranty or agreement to the extent such misstatements or omissions were the result of any inaccurate information that was included in the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Prospectus or any inaccurate information furnished to the Underwriter by the Transferor expressly for use therein, which information was not corrected by information subsequently provided by the Transferor to the Underwriter reasonably prior to the time of first use of such Underwriter Free Writing Prospectus; and
(ii) each Underwriter Free Writing Prospectus prepared by it shall contain a legend substantially in the form of and in compliance with the Rules and Regulations of the Act, and shall otherwise conform to any requirements for “free writing prospectuses” under the Act.
(e) Each Underwritercovenants, severally and not jointly, represents, warrants and agrees that it will not, at any such time that such Underwriter is acting as an “underwriter” (as defined in Section 2(a)(11) of the Act) with respect to the Certificates, transfer, deposit or otherwise convey any Certificates into a trust or other type of special purpose vehicle that issues securities or other instruments backed in whole or in part by, or that represents interest in, such Certificates without the prior written consent of the Transferor.Company and AHFC that:
(fa) Each Underwriter, severally and not jointly, represents, warrants and agrees that it has not and will not, directly or indirectly, offer, sell or deliver any of the Certificates or distribute the Prospectus, the Ratings Free Writing Prospectus, Preliminary Prospectus or any other offering material relating to the Certificates in or from any jurisdiction except under circumstances that will, to the best of its knowledge and belief, result in compliance by it with any applicable laws and regulations thereof and that will, to the best of its knowledge and belief, not impose any obligations on the Transferor except as set forth herein.
(g) Each Underwriter, severally and not jointly, represents, warrants and agrees that it (i) has complied and will comply with all applicable provisions of the Financial Services and Markets Xxx 0000, as amended (the “FSMA”), with respect to anything done by it in relation to any Certificates in, from or otherwise involving the United Kingdom, and (ii) has only communicated or caused to be communicated and will only communicate or cause to be communicated an any invitation or inducement to engage in investment activity (activity, within the meaning of Section 21 of the Financial Services and Markets Act 2000, as amended (the “FSMA) ”), received by it in connection with the issue of the Notes or sale of any Certificates Underwritten Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Underwritten Notes in, from or otherwise involving the United Kingdom; and
(hb) Each Underwriterin relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, severally a “Relevant Member State”), with effect from and not jointly, represents, warrants and agrees including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Certificates an offer of Underwritten Notes to any retail investor the public in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the followingthat Relevant Member State other than: (i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); (ii) a customer within the meaning of Directive 2002/92/EC (as amended), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II or (iii) not to any legal entity which is a qualified investor as defined in the Prospectus Directive; (ii) to fewer than 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive; or (iii) in any other circumstances which do not require the publication by the Trust of a prospectus pursuant to Article 3(2) of the Prospectus Directive; provided that no such offer of Underwritten Notes shall require the Trust or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For purposes of Section 4(b) of this Agreement, (i) the foregoing, the expression “ an offer of Underwritten Notes to the public” in relation to any notes in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Underwritten Notes to be offered so as to enable an investor to decide to purchase or subscribe the Underwritten Notes, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, and (ii) the expression “Prospectus Directive” means Directive 2003/71/EC (as amended).
(i) Each Underwriterand amendments thereto, severally and not jointly, covenants with the Bank and the Transferor that on or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Certificates, it (a) will not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Actincluding Directive 2010/73/EU), and (b) will not participate includes any relevant implementing measure in any oral communication of Rating Information with any Rating Agency or any other “nationally recognized statistical rating organization” (within the meaning of the Exchange Act) unless a designated representative from the Bank or the Transferor participates in such communication; provided, however, that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is authorized to inform such Rating Agency that it will respond to the oral communication with a designated representative from the Bank or the Transferor or refer such Rating Agency to the Transferor, who will respond to the oral communication. “Rating Information” means any oral or written information provided to a Rating Agency for the purpose of (a) determining the initial credit rating for the Certificates, including information about the characteristics of the Receivables and the legal structure of the Certificates, or (b) undertaking credit rating surveillance on the Certificates, including information about the characteristics and performance of the ReceivablesRelevant Member State.
Appears in 1 contract
Samples: Underwriting Agreement (Honda Auto Receivables 2015-4 Owner Trust)