Representations and Warranties of the Depositor and the Sponsor. Each of the Depositor and the Sponsor jointly and severally represents and warrants to and agrees with the Underwriters that: (a) A registration statement on Form S-3 (No. 333-26675), including a prospectus, relating to the Certificates has been filed with the Securities and Exchange Commission (the "Commission") and has become effective. Such registration statement, as amended as of the date of the Agreement is hereinafter referred to as the "Registration Statement," and the prospectus included in such Registration Statement, as supplemented to reflect the terms of the Certificates as first filed with the Commission after the date of this Agreement pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of 1933, as amended (the "Act"), including all material incorporated by reference therein, is hereinafter referred to as the "Prospectus," a "preliminary prospectus" means any form of prospectus, including any prospectus supplement, relating to the Certificates used prior to date of this Agreement that is subject to completion. (b) incorporated by reference in such Registration Statement or such Prospectus (or any amendment thereof or supplement thereto). The Depositor acknowledges that any information furnished by the Representative specifically for use in the Registration Statement, any preliminary prospectus or the Prospectus is the Underwriters' Information. (c) The Depositor meets the requirements for use of Form S-3 under the Act. (d) The documents incorporated by reference in the Registration Statement and Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission thereunder. (e) Each of the Depositor, BDFS and each Originator is a corporation duly organized, validly existing and in good standing under the laws of its respective state of incorporation, is duly qualified to transact business as a foreign corporation in each jurisdiction in which it is required to be so qualified and has all necessary licenses, permits and consents to conduct its business as presently conducted and as described in the Prospectus and to perform its obligations under the Basic Documents. (f) This Agreement has been duly authorized, executed and delivered by the Depositor and BDFS and constitutes a valid and binding agreement of each of the Depositor and BDFS, enforceable against the Depositor and BDFS in accordance with its terms, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors' rights generally, (y) to general principles of equity (regardless of and whether the enforcement of such remedies is considered in a proceeding in equity or at law) and (z) with respect to rights of indemnity under this Agreement, to limitations of public policy under applicable securities laws. (g) None of the Depositor, BDFS or any of the Originators is in breach or violation of any credit or security agreement or other agreement or instrument to which it is a party or by which it or its properties may be bound, or in violation of any applicable law, statute, regulation or ordinance or any governmental body having jurisdiction over it, which breach or violation would have a material and adverse effect on its ability to perform its obligations under this Agreement or any of the Basic Documents, in each case, to which it is a party. (h) Other than as contemplated by this Agreement or as disclosed in the Prospectus, there is no broker, finder or other party that is entitled to receive from the Depositor, BDFS, any Originator or any affiliate thereof or the Underwriters, any brokerage or finder's fee or other fee or commission as a result of any of the transactions contemplated by this Agreement. (j) The Trust is not an "investment company" and is not required to be registered as an "investment company," as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act"). (k) As of the Closing Date (as defined below), the representations and warranties of BDFS, the Depositor and each of the Originators, in each of its capacities under each of the Basic Documents, to which it is a party will be true and correct in all material respects and each such representation and warranty is so incorporated herein by this reference. (l) The Depositor has filed the preliminary prospectus supplement relating to the Certificates pursuant to and in accordance with Rule 424(b). (m) On or before the Closing Date, the Basic Documents will have been duly authorized, executed and delivered by each of the parties thereto. (n) Each Originator's assignment and sale of the Receivables it will sell to BDFS pursuant to the Loan Sale Agreement on the Closing Date will vest in the BDFS all of such Originator's right, title and interest to such Receivables (o) The BDFS's assignment and sale of the Receivables to the Depositor on the Closing Date will vest in the Depositor all of BDFS's right, title and interest therein. (p) The Depositor's assignment and sale of the Receivables to the Trust on the Closing Date will vest in the Trust all the Depositor's right, title and interest therein, or will result in a first priority perfected security interest therein, in either case subject to no other outstanding Lien. (q) The Certificates, when duly and validly executed by the Trustee, authenticated and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for pursuant hereto will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. (s) There are no legal or governmental proceedings pending to which the Depositor, BDFS or any Originator is a party or of which any of its properties is the subject, which if determined adversely to the Depositor, BDFS or any Originator would individually or in the aggregate have a material adverse effect on the financial position, shareholders' equity or results of operations of any of them; and to the best of the Depositor's or BDFS's knowledge, no such proceedings are threatened or contemplated by governmental authorities or others. (t) No consent, license, approval, authorization or order of or declaration or filing with any governmental authority is required for the issuance or sale of the Certificates or the consummation of the other transactions contemplated by this Agreement or the Basic Documents, except such as have been duly made or obtained. (u) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change, or any development which could reasonably be expected to result in a material adverse change, in or affecting the financial position, shareholders' equity or results of operations of the Depositor, BDFS or any Originator or the Depositor's, BDFS's or any Originator's ability to perform its obligations under this Agreement or any of the Basic Documents to which it is a party. (v) Any taxes, fees and other governmental charges due on or prior to the Closing Date (including, without limitation, sales taxes) in connection with the execution, delivery and issuance of this Agreement, the Basic Documents and the Certificates have been or will have been paid at or prior to the Closing Date. (w) The Receivables are chattel paper as defined in the Uniform Commercial Code as in effect in the State of [Florida]. (x) Under generally accepted accounting principles, each Originator will report its transfer of the Receivables transferred by it to BDFS pursuant to the Loan Sale Agreement as a Sale of the Receivables, BDFS will report its transfer of the Receivables transferred by it to the Depositor pursuant to the Loan Purchase Agreement as a sale of the Receivables, and the Depositor will report its transfer of the Receivables to the Trustee pursuant to the Pooling and Servicing Agreement as a sale of the Receivables. Each of BDFS, each of the Originators and the Depositor has been advised by ___________ that the transfer will be so classified under generally accepted accounting principles in accordance with Statement No. 77 of the Financial Accounting Standards Board. Each of BDFS, each of the Originators and the Depositor will also report such transfer in all financial statements and reports prepared by it in accordance with applicable regulatory accounting principles. (y) The Originators, pursuant to the Loan Sale Agreement, are transferring to the BDFS ownership of the Receivables, the security interest in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, and, immediately prior to the transfer thereof to BDFS, BDFS will be the sole owner of all right, title and interest in, and will have good and marketable title to, the Receivables and the other property to be transferred by it to BDFS. BDFS, pursuant to the Loan Purchase Agreement, is transferring to the Depositor ownership of the Receivables, the security interest in the -5- Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, and, immediately prior to the transfer thereof to the Depositor, BDFS will be the sole owner of all right, title and interest in, and will have good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Pooling and Servicing Agreement, vests in the Trust all interests which are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances. (z) Immediately prior to the transfer of the Receivables to the Trust, BDFS's interest in the Receivables and the proceeds thereof shall be perfected upon the filing of UCC-1 financing statements (the "Financing Statements") in the offices specified in Schedule I, the Depositor's interest in the Receivables and the proceeds thereof shall be perfected upon the filing of UCC-1 financing statements (the "Financing Statements") in the offices specified in Schedule I, and there shall be no unreleased statements affecting the Receivables filed in such offices other than the Financing Statements. If a court concludes that the transfer of the Receivables from (i) BDFS to the Depositor is a sale, the interest of the Depositor in the Receivables and the proceeds thereof will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of [New York] and (ii) the Depositor to the Trust is a sale, the interest of the Trust in the Receivables and the proceeds thereof will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of New York. If a court concludes that each such transfer is not a sale, the Pooling and Servicing Agreement and the transactions contemplated thereby constitute a grant by BDFS to the Depositor and the Depositor to the Trust of a valid security interest in the Receivables and the proceeds thereof, which security interest will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of New York and [Florida]. No filing or other action, other than the filing of the Financing Statements in the office of the Secretary of State of the State of New York [and Florida] referred to above, is necessary to perfect and maintain the interest or the security interest of the Trust in the Receivables and the proceeds thereof against third parties.] (aa) As of the Closing Date, each of the respective representations and warranties of the Depositor, BDFS, and each of the Originators set forth in the Basic Documents will be true and correct, and the Underwriters may rely on such representations and warranties as if they were set forth herein in full. (bb) In connection with the offering of the Certificates in the State of Florida, the Depositor hereby certifies that it has complied with all provisions of Section 5.17.075 of the Florida Securities and Investor Protection Act.
Appears in 1 contract
Samples: Underwriting Agreement (Barnett Auto Receivables Corp)
Representations and Warranties of the Depositor and the Sponsor. Each of the The Depositor and the Sponsor jointly and severally represents and warrants to and agrees with the Underwriters that:
(a) A registration statement on Form S-3 (No. 333-26675), including a prospectus, relating to the Certificates has been filed with the Securities and Exchange Commission (the "Commission") and has become effective. Such registration statementSponsor, as amended applicable, represent and warrant to, and agree with, each Underwriter, as of the date of the Agreement is hereinafter referred Underwriting Agreement, as follows:
(a) The Registration Statement including a prospectus relating to as the "Registration Statement," Securities and the prospectus included offering thereof from time to time in accordance with Rule 415 under the 1933 Act has been filed with the Commission and such Registration Statement, as supplemented amended to reflect the terms date of the Certificates as first Underwriting Agreement, has become effective. No stop order suspending the effectiveness of such Registration Statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission. A prospectus supplement specifically relating to the Offered Securities will be filed with the Commission after the date of this Agreement pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") 424 under the 1933 Act; provided, however, that a supplement to the Prospectus prepared pursuant to Section -------- ------- 5(b) hereof shall be deemed to have supplemented the base Prospectus only with respect to the Offered Securities Act to which it relates. The conditions to the use of 1933a registration statement on Form S-3 under the 1933 Act, as amended (set forth in the "General Instructions on Form S-3, and the conditions of Rule 415 under the 1933 Act"), including all material incorporated by reference therein, is hereinafter referred to as the "Prospectus," a "preliminary prospectus" means any form of prospectus, including any prospectus supplement, relating have been satisfied with respect to the Certificates used prior Sponsor and the Registration Statement. There are no contracts or documents of the Sponsor that are required to date of this Agreement be filed as exhibits to the Registration Statement pursuant to the 1933 Act or the rules and regulations thereunder that is subject to completionhave not been so filed.
(b) incorporated by reference in such Registration Statement or such Prospectus (or any amendment thereof or supplement thereto). The Depositor acknowledges that any information furnished by On the Representative specifically for use in effective date of the Registration Statement, any preliminary prospectus or the Prospectus is the Underwriters' Information.
(c) The Depositor meets the requirements for use of Form S-3 under the Act.
(d) The documents incorporated by reference in the Registration Statement and Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply base Prospectus conformed in all material respects with to the requirements of the Securities Exchange 1933 Act of 1934, as amended (the "Exchange Act"), and the rules and regulations thereunder, and did not include any untrue statement of the Commission thereunder.
(e) Each of the Depositor, BDFS and each Originator is a corporation duly organized, validly existing and in good standing under the laws of its respective material fact or omit to state of incorporation, is duly qualified to transact business as a foreign corporation in each jurisdiction in which it is any material fact required to be so qualified and has all stated therein or necessary licenses, permits and consents to conduct its business as presently conducted make the statements therein not misleading; on the date of the Underwriting Agreement and as described in the Prospectus and to perform its obligations under the Basic Documents.
(f) This Agreement has been duly authorized, executed and delivered by the Depositor and BDFS and constitutes a valid and binding agreement of each of the Depositor and BDFS, enforceable against the Depositor and BDFS in accordance with its terms, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors' rights generally, (y) to general principles of equity (regardless of and whether the enforcement of such remedies is considered in a proceeding in equity or at law) and (z) with respect to rights of indemnity under this Agreement, to limitations of public policy under applicable securities laws.
(g) None of the Depositor, BDFS or any of the Originators is in breach or violation of any credit or security agreement or other agreement or instrument to which it is a party or by which it or its properties may be bound, or in violation of any applicable law, statute, regulation or ordinance or any governmental body having jurisdiction over it, which breach or violation would have a material and adverse effect on its ability to perform its obligations under this Agreement or any of the Basic Documents, in each case, to which it is a party.
(h) Other than as contemplated by this Agreement or as disclosed in the Prospectus, there is no broker, finder or other party that is entitled to receive from the Depositor, BDFS, any Originator or any affiliate thereof or the Underwriters, any brokerage or finder's fee or other fee or commission as a result of any of the transactions contemplated by this Agreement.
(j) The Trust is not an "investment company" and is not required to be registered as an "investment company," as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act").
(k) As of the Closing Date (as defined below), the representations and warranties of BDFS, the Depositor and each of the Originators, in each of its capacities under each of the Basic Documents, to which it is a party will be true and correct in all material respects and each such representation and warranty is so incorporated herein by this reference.
(l) The Depositor has filed the preliminary prospectus supplement relating to the Certificates pursuant to and in accordance with Rule 424(b).
(m) On or before the Closing Date, the Basic Documents Registration Statement and the Prospectus conform, and as amended or supplemented, if applicable, will have been duly authorized, executed and delivered by each conform in all material respects to the requirements of the parties thereto.
(n) Each Originator's assignment 1933 Act and sale the rules and regulations thereunder, and on the date of the Receivables it will sell to BDFS pursuant to the Loan Sale Underwriting Agreement on and as of the Closing Date will vest in the BDFS all Date, neither of such Originator's rightdocuments includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, title and interest neither of such documents as amended or supplemented, if applicable, will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the foregoing does not apply to statements or omissions in any of such Receivables
(o) The BDFS's assignment and sale of the Receivables documents based upon written information furnished to the Depositor on the Closing Date will vest in the Depositor all of BDFS's right, title and interest by any Underwriter specifically for use therein.
(p) The Depositor's assignment and sale of the Receivables to the Trust on the Closing Date will vest in the Trust all the Depositor's right, title and interest therein, or will result in a first priority perfected security interest therein, in either case subject to no other outstanding Lien.
(q) The Certificates, when duly and validly executed by the Trustee, authenticated and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for pursuant hereto will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement.
(s) There are no legal or governmental proceedings pending to which the Depositor, BDFS or any Originator is a party or of which any of its properties is the subject, which if determined adversely to the Depositor, BDFS or any Originator would individually or in the aggregate have a material adverse effect on the financial position, shareholders' equity or results of operations of any of them; and to the best of the Depositor's or BDFS's knowledge, no such proceedings are threatened or contemplated by governmental authorities or others.
(t) No consent, license, approval, authorization or order of or declaration or filing with any governmental authority is required for the issuance or sale of the Certificates or the consummation of the other transactions contemplated by this Agreement or the Basic Documents, except such as have been duly made or obtained.
(uc) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, there has not been any no material adverse changechange in the condition, financial or any development which could reasonably otherwise, earnings, affairs, regulatory situation or business prospects of the Depositor, whether or not arising in the ordinary course of the business of the Depositor.
(d) The Depositor has been duly organized and is validly existing as a corporation in good standing under the laws of the State of __________.
(e) The Depositor has all requisite power and authority (corporate and other) and all requisite authorizations, approvals, orders, licenses, certificates and permits of and from all government or regulatory officials and bodies to own its properties, to conduct its business as described in the Registration Statement and the Prospectus and to execute, deliver and perform these Standard Provisions, the Underwriting Agreement, the Loan Sale Agreement and the Sale and Servicing Agreement, except such as may be expected required under state securities or Blue Sky laws in connection with the purchase and distribution by the Underwriter of the Offered Securities; all such authorizations, approvals, orders, licenses, certificates are in full force and effect and contain no unduly burdensome provisions; and, except as set forth or contemplated in the Registration Statement or the Prospectus, there are no legal or governmental proceedings pending or, to the best knowledge of the Depositor, threatened that would result in a material adverse changemodification, in suspension or revocation thereof.
(f) The Offered Securities have been duly authorized, and when the Offered Securities are issued and delivered pursuant to the Underwriting Agreement, the Offered Securities will have been duly executed, issued and delivered and will be entitled to the benefits provided by the applicable Indenture, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting the financial positionrights of creditors generally, shareholders' and to general principles of equity (regardless of whether the entitlement to such benefits is considered in a proceeding in equity or results at law), and will conform in substance to the description thereof contained in the Registration Statement and the Prospectus, and will in all material respects be in the form contemplated by the Indenture.
(g) The execution and delivery by the Depositor of operations these Standard Provisions, the Underwriting Agreement, the Loan Sale Agreement and the Sale and Servicing Agreement are within the corporate power of the Depositor and none of the execution and delivery by the Depositor of these Standard Provisions, the Underwriting Agreement, the Loan Sale Agreement and the Sale and Servicing Agreement, the consummation by the Depositor of the transactions therein contemplated, or the compliance by the Depositor with the provisions thereof, will conflict with or result in a breach of, or constitute a default under, the charter or the by-laws of the Depositor or any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Depositor or its properties, or any of the provisions of any indenture, mortgage, contract or other instrument to which the Depositor is a party or by which it is bound, or will result in the creation or imposition of a lien, charge or encumbrance upon any of its property pursuant to the terms of any such indenture, mortgage, contract or other instrument, except such as have been obtained under the 1933 Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Offered Securities by the Underwriters.
(h) The Underwriting Agreement has been, and at the Closing Date the Loan Sale Agreement and the Sale and Servicing Agreement will have been, duly authorized, executed and delivered by the Depositor.
(i) At the Closing Date, each of the Underwriting Agreement, the Loan Sale Agreement and the Sale and Servicing Agreement will constitute a legal, valid and binding obligation of the Depositor, BDFS or any Originator or enforceable against the Depositor's, BDFS's or any Originator's ability in accordance with its terms, subject, as to perform its obligations under this Agreement or any the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting the rights of creditors generally, and to general principles of equity and the discretion of the Basic Documents to which it court (regardless of whether the enforcement of such remedies is considered in a partyproceeding in equity or at law).
(vj) No filing or registration with, notice to, or consent, approval, non-disapproval, authorization or order or other action of, any court or governmental authority or agency is required for the consummation by the Depositor of the transactions contemplated by the Underwriting Agreement, the Loan Sale Agreement or the Sale and Servicing Agreement, except such as have been obtained and except such as may be required under the 1933 Act, the rules and regulations thereunder, or state securities or "Blue Sky" laws, in connection with the purchase and distribution of the Offered Securities by the Underwriters.
(k) The Depositor owns or possesses or has obtained all material governmental licenses, permits, consents, orders, approvals and other authorizations necessary to lease, own or license, as the case may be, and to operate, its properties and to carry on its business as presently conducted and has received no notice of proceedings relating to the revocation of any such license, permit, consent, order or approval, which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the conduct of the business, results of operations, net worth or condition (financial or otherwise) of the Depositor.
(l) Other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Depositor is a party or of which any property of the Depositor is the subject which, if determined adversely to the Depositor would individually or in the aggregate have a material adverse effect on the condition (financial or otherwise), earnings, affairs, or business or business prospects of the Depositor and, to the best of the Depositor's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(m) Each of the Offered Securities will, when issued, be a "mortgage related security" as such term is defined in Section 3(a)(41) of the 1934 Act.
(n) At the Closing Date or any Subsequent Transfer Date, as the case may be, each of the Mortgage Loans which is a subject of the Loan Sale Agreement and the Sale and Servicing Agreement and all such Mortgage Loans in the aggregate will meet the criteria for selection described in the Prospectus, and at the Closing Date or any Subsequent Transfer Date, as the case may be, the representations and warranties made by the Depositor both the Loan Sale Agreement and the Sale and Servicing Agreement will be true and correct as of such date.
(o) At the time of execution and delivery of the Loan Sale Agreement and the Sale and Servicing Agreement and on any Subsequent Transfer Date, as the case may be, the Depositor will have good and marketable title to the Mortgage Loans being transferred to the Issuer pursuant to the Sale and Servicing Agreement, free and clear of any lien, mortgage, pledge, charge, encumbrance, adverse claim or other security interest (collectively, "Liens"), and will not have assigned to any person (other than the Issuer and the Indenture Trustee) any of its right, title or interest in such Mortgage Loans or in such Loan Sale Agreement or such Sale and Servicing Agreement or the Offered Securities being issued pursuant thereto, the Depositor will have the power and authority to transfer such Mortgage Loans to the Issuer and to transfer the Offered Securities to each of the Underwriters, and upon execution and delivery to the Issuer of the Sale and Servicing Agreement and delivery to each of the Underwriters of the Offered Securities, and on any Subsequent Transfer Date, as the case may be, the Issuer will have good and marketable title to the Mortgage Loans and each of the Underwriters will have good and marketable title to the Offered Securities, in each case free and clear of any Liens.
(p) Any taxes, fees and other governmental charges due on or prior to the Closing Date (including, without limitation, sales taxes) in connection with the execution, delivery and issuance of this the Underwriting Agreement, these Standard Provisions, the Basic Documents Indenture, the Sale and Servicing Agreement and the Certificates Offered Securities have been or will have been be paid at or prior to the Closing Date.
(w) The Receivables are chattel paper as defined in the Uniform Commercial Code as in effect in the State of [Florida].
(x) Under generally accepted accounting principles, each Originator will report its transfer of the Receivables transferred by it to BDFS pursuant to the Loan Sale Agreement as a Sale of the Receivables, BDFS will report its transfer of the Receivables transferred by it to the Depositor pursuant to the Loan Purchase Agreement as a sale of the Receivables, and the Depositor will report its transfer of the Receivables to the Trustee pursuant to the Pooling and Servicing Agreement as a sale of the Receivables. Each of BDFS, each of the Originators and the Depositor has been advised by ___________ that the transfer will be so classified under generally accepted accounting principles in accordance with Statement No. 77 of the Financial Accounting Standards Board. Each of BDFS, each of the Originators and the Depositor will also report such transfer in all financial statements and reports prepared by it in accordance with applicable regulatory accounting principles.
(y) The Originators, pursuant to the Loan Sale Agreement, are transferring to the BDFS ownership of the Receivables, the security interest in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, and, immediately prior to the transfer thereof to BDFS, BDFS will be the sole owner of all right, title and interest in, and will have good and marketable title to, the Receivables and the other property to be transferred by it to BDFS. BDFS, pursuant to the Loan Purchase Agreement, is transferring to the Depositor ownership of the Receivables, the security interest in the -5- Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, and, immediately prior to the transfer thereof to the Depositor, BDFS will be the sole owner of all right, title and interest in, and will have good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Pooling and Servicing Agreement, vests in the Trust all interests which are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances.
(z) Immediately prior to the transfer of the Receivables to the Trust, BDFS's interest in the Receivables and the proceeds thereof shall be perfected upon the filing of UCC-1 financing statements (the "Financing Statements") in the offices specified in Schedule I, the Depositor's interest in the Receivables and the proceeds thereof shall be perfected upon the filing of UCC-1 financing statements (the "Financing Statements") in the offices specified in Schedule I, and there shall be no unreleased statements affecting the Receivables filed in such offices other than the Financing Statements. If a court concludes that the transfer of the Receivables from (i) BDFS to the Depositor is a sale, the interest of the Depositor in the Receivables and the proceeds thereof will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of [New York] and (ii) the Depositor to the Trust is a sale, the interest of the Trust in the Receivables and the proceeds thereof will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of New York. If a court concludes that each such transfer is not a sale, the Pooling and Servicing Agreement and the transactions contemplated thereby constitute a grant by BDFS to the Depositor and the Depositor to the Trust of a valid security interest in the Receivables and the proceeds thereof, which security interest will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of New York and [Florida]. No filing or other action, other than the filing of the Financing Statements in the office of the Secretary of State of the State of New York [and Florida] referred to above, is necessary to perfect and maintain the interest or the security interest of the Trust in the Receivables and the proceeds thereof against third parties.]
(aa) As of the Closing Date, each of the respective representations and warranties of the Depositor, BDFS, and each of the Originators set forth in the Basic Documents will be true and correct, and the Underwriters may rely on such representations and warranties as if they were set forth herein in full.
(bb) In connection with the offering of the Certificates in the State of Florida, the Depositor hereby certifies that it has complied with all provisions of Section 5.17.075 of the Florida Securities and Investor Protection Act.
Appears in 1 contract
Samples: Underwriting Agreement (Prudential Securities Secured Financing Corp)
Representations and Warranties of the Depositor and the Sponsor. Each of the (a) The Depositor and the Sponsor jointly and severally represents and warrants to and agrees with the Underwriters that:
(ai) A registration statement on Form S-3 (No. 333-26675), including a prospectus, relating to the Certificates The Depositor has been filed with the Securities and Exchange Commission (the "Commission"), a registration statement (No. 333-132042) and has become effective. Such on Form S-3 for the registration statement, as amended as of the date of the Agreement is hereinafter referred to as the "Registration Statement," and the prospectus included in such Registration Statement, as supplemented to reflect the terms of the Certificates as first filed with the Commission after the date of this Agreement pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of 1933, as amended (the "Act"), in conformity with the rules and regulations (the "Rules and Regulations") of the Commission, of Mortgage Pass-Through Certificates and Mortgage Pass-Through Notes (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(vii) or (x) under the Act and complies in all other material respects with such Rule. As used in this Underwriting Agreement, "Effective Time" means the date and the time as of which the latter of (i) such Registration Statement, or the most recent post effective amendment thereto, if any, was declared effective by the Commission or (ii) the document most recently filed with the Commission was incorporated into such Registration Statement; "Effective Date" means the date of the Effective Time; "Registration Statement" means such registration statement, at the Effective Time, including all material any documents incorporated by reference thereintherein at such time; and "Prospectus" means the final prospectus, is hereinafter referred to as first supplemented by a prospectus supplement dated September 27, 2006 (the "Prospectus," a Prospectus Supplement"preliminary prospectus" means any form of prospectus, including any prospectus supplement, ) relating to the Certificates used prior Notes, as first filed with the Commission pursuant to date paragraph (1) or (4) or (5) of this Agreement Rule 424(b) of the Rules and Regulations; and "Pricing Free Writing Prospectus" means the free writing prospectus relating to the Offered Notes dated September 25, 2006 that is subject has been filed with the Commission pursuant to completion.
(b) Rule 433 of the Rules and Regulations. Reference made herein to the Prospectus shall be deemed to refer to and include any documents incorporated by reference in such Registration Statement or such Prospectus (or any amendment thereof or supplement thereto). The Depositor acknowledges that any information furnished by the Representative specifically for use in the Registration Statement, any preliminary prospectus or the Prospectus is the Underwriters' Information.
(c) The Depositor meets the requirements for use therein pursuant to Item 12 of Form S-3 under the Act.
(d) The documents incorporated by , as of the date of the Prospectus and any reference in to any amendment or supplement to the Registration Statement Prospectus shall be deemed to refer to and Prospectus, at the time they were or hereafter are include any document filed with the Commission, complied and will comply in all material respects with the requirements of under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and after the rules and regulations date of the Commission thereunder.
(e) Each of the Depositor, BDFS Prospectus and each Originator is a corporation duly organized, validly existing and in good standing under the laws of its respective state of incorporation, is duly qualified to transact business as a foreign corporation in each jurisdiction in which it is required to be so qualified and has all necessary licenses, permits and consents to conduct its business as presently conducted and as described incorporated by reference in the Prospectus and to perform its obligations under the Basic Documents.
(f) This Agreement has been duly authorized, executed and delivered by the Depositor and BDFS and constitutes a valid and binding agreement of each of the Depositor and BDFS, enforceable against the Depositor and BDFS in accordance with its terms, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors' rights generally, (y) to general principles of equity (regardless of and whether the enforcement of such remedies is considered in a proceeding in equity or at law) and (z) with respect to rights of indemnity under this Agreement, to limitations of public policy under applicable securities laws.
(g) None of the Depositor, BDFS or any of the Originators is in breach or violation of any credit or security agreement or other agreement or instrument to which it is a party or by which it or its properties may be bound, or in violation of any applicable law, statute, regulation or ordinance or any governmental body having jurisdiction over it, which breach or violation would have a material and adverse effect on its ability to perform its obligations under this Agreement or any of the Basic Documents, in each case, to which it is a party.
(h) Other than as contemplated by this Agreement or as disclosed in the Prospectus, there is no broker, finder or other party that is entitled to receive from the Depositor, BDFS, any Originator or any affiliate thereof or the Underwriters, any brokerage or finder's fee or other fee or commission as a result of any of the transactions contemplated by this Agreement.
(j) The Trust is not an "investment company" and is not required to be registered as an "investment company," as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act").
(k) As of the Closing Date (as defined below), the representations and warranties of BDFS, the Depositor and each of the Originators, in each of its capacities under each of the Basic Documents, to which it is a party will be true and correct in all material respects and each such representation and warranty is so incorporated herein by this reference.
(l) The Depositor has filed the preliminary prospectus supplement relating to the Certificates pursuant to and in accordance with Rule 424(b).
(m) On or before the Closing Date, the Basic Documents will have been duly authorized, executed and delivered by each of the parties thereto.
(n) Each Originator's assignment and sale of the Receivables it will sell to BDFS pursuant to the Loan Sale Agreement on the Closing Date will vest in the BDFS all of such Originator's right, title and interest to such Receivables
(o) The BDFS's assignment and sale of the Receivables to the Depositor on the Closing Date will vest in the Depositor all of BDFS's right, title and interest therein.
(p) The Depositor's assignment and sale of the Receivables to the Trust on the Closing Date will vest in the Trust all the Depositor's right, title and interest therein, or will result in a first priority perfected security interest therein, in either case subject to no other outstanding Lien.
(q) The Certificates, when duly and validly executed by the Trustee, authenticated and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for pursuant hereto will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement.
(s) There are no legal or governmental proceedings pending to which the Depositor, BDFS or any Originator is a party or of which any of its properties is the subject, which if determined adversely to the Depositor, BDFS or any Originator would individually or in the aggregate have a material adverse effect on the financial position, shareholders' equity or results of operations of any of them; and to the best of the Depositor's or BDFS's knowledge, no such proceedings are threatened or contemplated by governmental authorities or others.
(t) No consent, license, approval, authorization or order of or declaration or filing with any governmental authority is required for the issuance or sale of the Certificates or the consummation of the other transactions contemplated by this Agreement or the Basic Documents, except such as have been duly made or obtained.
(u) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change, or any development which could reasonably be expected to result in a material adverse change, in or affecting the financial position, shareholders' equity or results of operations of the Depositor, BDFS or any Originator or the Depositor's, BDFS's or any Originator's ability to perform its obligations under this Agreement or any of the Basic Documents to which it is a party.
(v) Any taxes, fees and other governmental charges due on or prior to the Closing Date (including, without limitation, sales taxes) in connection Date; and any reference to any amendment to the Registration Statement shall be deemed to include any report filed with the executionCommission with respect to the Trust pursuant to Section 13(a) or 15(d) of the Exchange Act as of the Effective Time that is incorporated by reference in the Registration Statement. As of the date hereof and at the Closing Date, delivery there are no contracts or documents of the Depositor which are required to be filed as exhibits to the Registration Statement pursuant to the Act or the Rules and issuance of this Agreement, the Basic Documents and the Certificates Regulations on or prior to each such date which have not been so filed or will have been paid at incorporated by reference therein on or prior to the Closing Date.
(w) The Receivables are chattel paper as defined in the Uniform Commercial Code as in effect in the State of [Florida].
(x) Under generally accepted accounting principles, each Originator will report its transfer effective date of the Receivables transferred by it to BDFS pursuant to the Loan Sale Agreement Registration Statement. The conditions for use as a Sale of the Receivables, BDFS will report its transfer Effective Time by the Depositor of the Receivables transferred by it to Registration Statement on Form S-3 under the Depositor pursuant to the Loan Purchase Agreement as a sale of the Receivables, and the Depositor will report its transfer of the Receivables to the Trustee pursuant to the Pooling and Servicing Agreement as a sale of the Receivables. Each of BDFS, each of the Originators and the Depositor has Act have been advised by ___________ that the transfer will be so classified under generally accepted accounting principles in accordance with Statement No. 77 of the Financial Accounting Standards Board. Each of BDFS, each of the Originators and the Depositor will also report such transfer in all financial statements and reports prepared by it in accordance with applicable regulatory accounting principlessatisfied.
(y) The Originators, pursuant to the Loan Sale Agreement, are transferring to the BDFS ownership of the Receivables, the security interest in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, and, immediately prior to the transfer thereof to BDFS, BDFS will be the sole owner of all right, title and interest in, and will have good and marketable title to, the Receivables and the other property to be transferred by it to BDFS. BDFS, pursuant to the Loan Purchase Agreement, is transferring to the Depositor ownership of the Receivables, the security interest in the -5- Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, and, immediately prior to the transfer thereof to the Depositor, BDFS will be the sole owner of all right, title and interest in, and will have good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Pooling and Servicing Agreement, vests in the Trust all interests which are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances.
(z) Immediately prior to the transfer of the Receivables to the Trust, BDFS's interest in the Receivables and the proceeds thereof shall be perfected upon the filing of UCC-1 financing statements (the "Financing Statements") in the offices specified in Schedule I, the Depositor's interest in the Receivables and the proceeds thereof shall be perfected upon the filing of UCC-1 financing statements (the "Financing Statements") in the offices specified in Schedule I, and there shall be no unreleased statements affecting the Receivables filed in such offices other than the Financing Statements. If a court concludes that the transfer of the Receivables from (i) BDFS to the Depositor is a sale, the interest of the Depositor in the Receivables and the proceeds thereof will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of [New York] and (ii) the Depositor to the Trust is a sale, the interest of the Trust in the Receivables and the proceeds thereof will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of New York. If a court concludes that each such transfer is not a sale, the Pooling and Servicing Agreement and the transactions contemplated thereby constitute a grant by BDFS to the Depositor and the Depositor to the Trust of a valid security interest in the Receivables and the proceeds thereof, which security interest will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of New York and [Florida]. No filing or other action, other than the filing of the Financing Statements in the office of the Secretary of State of the State of New York [and Florida] referred to above, is necessary to perfect and maintain the interest or the security interest of the Trust in the Receivables and the proceeds thereof against third parties.]
(aa) As of the Closing Date, each of the respective representations and warranties of the Depositor, BDFS, and each of the Originators set forth in the Basic Documents will be true and correct, and the Underwriters may rely on such representations and warranties as if they were set forth herein in full.
(bb) In connection with the offering of the Certificates in the State of Florida, the Depositor hereby certifies that it has complied with all provisions of Section 5.17.075 of the Florida Securities and Investor Protection Act.
Appears in 1 contract
Representations and Warranties of the Depositor and the Sponsor. Each of the (a) The Depositor and the Sponsor jointly and severally represents and warrants to and agrees with the Underwriters that:
(ai) A registration statement on Form S-3 (No. 333-26675), including a prospectus, relating to the Certificates The Depositor has been filed with the Securities and Exchange Commission (the "“Commission"”), a registration statement (No. 333-134691) and has become effective. Such on Form S-3 for the registration statement, as amended as of the date of the Agreement is hereinafter referred to as the "Registration Statement," and the prospectus included in such Registration Statement, as supplemented to reflect the terms of the Certificates as first filed with the Commission after the date of this Agreement pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of 1933, as amended (the "“Act"”), in conformity with the rules and regulations (the “Rules and Regulations”) of the Commission, of Mortgage Pass-Through Certificates and Mortgage Pass-Through Notes (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(vii) or (x) under the Act and complies in all other material respects with such Rule. As used in this Underwriting Agreement, “Effective Time” means the date and the time as of which the latter of (i) such Registration Statement, or the most recent post effective amendment thereto, if any, was declared effective by the Commission or (ii) the document most recently filed with the Commission was incorporated into such Registration Statement; “Effective Date” means the date of the Effective Time; “Registration Statement” means such registration statement, at the Effective Time, including all material any documents incorporated by reference therein, is hereinafter referred to as therein at such time; and “Prospectus” means the "Prospectus," a "preliminary prospectus" means any form of final prospectus, including any as first supplemented by a prospectus supplementsupplement dated March 21, 2007 (the “Prospectus Supplement”) relating to the Certificates used prior Notes, as first filed with the Commission pursuant to date paragraph (1) or (4) or (5) of this Agreement Rule 424(b) of the Rules and Regulations; and “Pricing Free Writing Prospectus” means the free writing prospectus relating to the Offered Notes dated March 19, 2007 that is subject has been filed with the Commission pursuant to completion.
(b) Rule 433 of the Rules and Regulations. Reference made herein to the Prospectus shall be deemed to refer to and include any documents incorporated by reference in such Registration Statement or such Prospectus (or any amendment thereof or supplement thereto). The Depositor acknowledges that any information furnished by the Representative specifically for use in the Registration Statement, any preliminary prospectus or the Prospectus is the Underwriters' Information.
(c) The Depositor meets the requirements for use therein pursuant to Item 12 of Form S-3 under the Act.
(d) The documents incorporated by , as of the date of the Prospectus and any reference in to any amendment or supplement to the Registration Statement Prospectus shall be deemed to refer to and Prospectus, at the time they were or hereafter are include any document filed with the Commission, complied and will comply in all material respects with the requirements of under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), and after the rules and regulations date of the Commission thereunder.
(e) Each of the Depositor, BDFS Prospectus and each Originator is a corporation duly organized, validly existing and in good standing under the laws of its respective state of incorporation, is duly qualified to transact business as a foreign corporation in each jurisdiction in which it is required to be so qualified and has all necessary licenses, permits and consents to conduct its business as presently conducted and as described incorporated by reference in the Prospectus and to perform its obligations under the Basic Documents.
(f) This Agreement has been duly authorized, executed and delivered by the Depositor and BDFS and constitutes a valid and binding agreement of each of the Depositor and BDFS, enforceable against the Depositor and BDFS in accordance with its terms, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors' rights generally, (y) to general principles of equity (regardless of and whether the enforcement of such remedies is considered in a proceeding in equity or at law) and (z) with respect to rights of indemnity under this Agreement, to limitations of public policy under applicable securities laws.
(g) None of the Depositor, BDFS or any of the Originators is in breach or violation of any credit or security agreement or other agreement or instrument to which it is a party or by which it or its properties may be bound, or in violation of any applicable law, statute, regulation or ordinance or any governmental body having jurisdiction over it, which breach or violation would have a material and adverse effect on its ability to perform its obligations under this Agreement or any of the Basic Documents, in each case, to which it is a party.
(h) Other than as contemplated by this Agreement or as disclosed in the Prospectus, there is no broker, finder or other party that is entitled to receive from the Depositor, BDFS, any Originator or any affiliate thereof or the Underwriters, any brokerage or finder's fee or other fee or commission as a result of any of the transactions contemplated by this Agreement.
(j) The Trust is not an "investment company" and is not required to be registered as an "investment company," as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act").
(k) As of the Closing Date (as defined below), the representations and warranties of BDFS, the Depositor and each of the Originators, in each of its capacities under each of the Basic Documents, to which it is a party will be true and correct in all material respects and each such representation and warranty is so incorporated herein by this reference.
(l) The Depositor has filed the preliminary prospectus supplement relating to the Certificates pursuant to and in accordance with Rule 424(b).
(m) On or before the Closing Date, the Basic Documents will have been duly authorized, executed and delivered by each of the parties thereto.
(n) Each Originator's assignment and sale of the Receivables it will sell to BDFS pursuant to the Loan Sale Agreement on the Closing Date will vest in the BDFS all of such Originator's right, title and interest to such Receivables
(o) The BDFS's assignment and sale of the Receivables to the Depositor on the Closing Date will vest in the Depositor all of BDFS's right, title and interest therein.
(p) The Depositor's assignment and sale of the Receivables to the Trust on the Closing Date will vest in the Trust all the Depositor's right, title and interest therein, or will result in a first priority perfected security interest therein, in either case subject to no other outstanding Lien.
(q) The Certificates, when duly and validly executed by the Trustee, authenticated and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for pursuant hereto will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement.
(s) There are no legal or governmental proceedings pending to which the Depositor, BDFS or any Originator is a party or of which any of its properties is the subject, which if determined adversely to the Depositor, BDFS or any Originator would individually or in the aggregate have a material adverse effect on the financial position, shareholders' equity or results of operations of any of them; and to the best of the Depositor's or BDFS's knowledge, no such proceedings are threatened or contemplated by governmental authorities or others.
(t) No consent, license, approval, authorization or order of or declaration or filing with any governmental authority is required for the issuance or sale of the Certificates or the consummation of the other transactions contemplated by this Agreement or the Basic Documents, except such as have been duly made or obtained.
(u) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change, or any development which could reasonably be expected to result in a material adverse change, in or affecting the financial position, shareholders' equity or results of operations of the Depositor, BDFS or any Originator or the Depositor's, BDFS's or any Originator's ability to perform its obligations under this Agreement or any of the Basic Documents to which it is a party.
(v) Any taxes, fees and other governmental charges due on or prior to the Closing Date (including, without limitation, sales taxes) in connection Date; and any reference to any amendment to the Registration Statement shall be deemed to include any report filed with the executionCommission with respect to the Issuing Entity pursuant to Section 13(a) or 15(d) of the Exchange Act as of the Effective Time that is incorporated by reference in the Registration Statement. As of the date hereof and at the Closing Date, delivery there are no contracts or documents of the Depositor which are required to be filed as exhibits to the Registration Statement pursuant to the Act or the Rules and issuance of this Agreement, the Basic Documents and the Certificates Regulations on or prior to each such date which have not been so filed or will have been paid at incorporated by reference therein on or prior to the Closing Date.
(w) The Receivables are chattel paper as defined in the Uniform Commercial Code as in effect in the State of [Florida].
(x) Under generally accepted accounting principles, each Originator will report its transfer effective date of the Receivables transferred by it to BDFS pursuant to the Loan Sale Agreement Registration Statement. The conditions for use as a Sale of the Receivables, BDFS will report its transfer Effective Time by the Depositor of the Receivables transferred by it to Registration Statement on Form S-3 under the Depositor pursuant to the Loan Purchase Agreement as a sale of the Receivables, and the Depositor will report its transfer of the Receivables to the Trustee pursuant to the Pooling and Servicing Agreement as a sale of the Receivables. Each of BDFS, each of the Originators and the Depositor has Act have been advised by ___________ that the transfer will be so classified under generally accepted accounting principles in accordance with Statement No. 77 of the Financial Accounting Standards Board. Each of BDFS, each of the Originators and the Depositor will also report such transfer in all financial statements and reports prepared by it in accordance with applicable regulatory accounting principlessatisfied.
(y) The Originators, pursuant to the Loan Sale Agreement, are transferring to the BDFS ownership of the Receivables, the security interest in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, and, immediately prior to the transfer thereof to BDFS, BDFS will be the sole owner of all right, title and interest in, and will have good and marketable title to, the Receivables and the other property to be transferred by it to BDFS. BDFS, pursuant to the Loan Purchase Agreement, is transferring to the Depositor ownership of the Receivables, the security interest in the -5- Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, and, immediately prior to the transfer thereof to the Depositor, BDFS will be the sole owner of all right, title and interest in, and will have good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Pooling and Servicing Agreement, vests in the Trust all interests which are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances.
(z) Immediately prior to the transfer of the Receivables to the Trust, BDFS's interest in the Receivables and the proceeds thereof shall be perfected upon the filing of UCC-1 financing statements (the "Financing Statements") in the offices specified in Schedule I, the Depositor's interest in the Receivables and the proceeds thereof shall be perfected upon the filing of UCC-1 financing statements (the "Financing Statements") in the offices specified in Schedule I, and there shall be no unreleased statements affecting the Receivables filed in such offices other than the Financing Statements. If a court concludes that the transfer of the Receivables from (i) BDFS to the Depositor is a sale, the interest of the Depositor in the Receivables and the proceeds thereof will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of [New York] and (ii) the Depositor to the Trust is a sale, the interest of the Trust in the Receivables and the proceeds thereof will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of New York. If a court concludes that each such transfer is not a sale, the Pooling and Servicing Agreement and the transactions contemplated thereby constitute a grant by BDFS to the Depositor and the Depositor to the Trust of a valid security interest in the Receivables and the proceeds thereof, which security interest will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of New York and [Florida]. No filing or other action, other than the filing of the Financing Statements in the office of the Secretary of State of the State of New York [and Florida] referred to above, is necessary to perfect and maintain the interest or the security interest of the Trust in the Receivables and the proceeds thereof against third parties.]
(aa) As of the Closing Date, each of the respective representations and warranties of the Depositor, BDFS, and each of the Originators set forth in the Basic Documents will be true and correct, and the Underwriters may rely on such representations and warranties as if they were set forth herein in full.
(bb) In connection with the offering of the Certificates in the State of Florida, the Depositor hereby certifies that it has complied with all provisions of Section 5.17.075 of the Florida Securities and Investor Protection Act.
Appears in 1 contract
Samples: Underwriting Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2007-H1)
Representations and Warranties of the Depositor and the Sponsor. Each of the (a) The Depositor and the Sponsor jointly and severally represents and warrants to and agrees with the Underwriters that:
(ai) A registration statement on Form S-3 (No. 333-26675), including a prospectus, relating to the Certificates The Depositor has been filed with the Securities and Exchange Commission (the "“Commission"”), a registration statement (No. 333-134691) and has become effective. Such on Form S-3 for the registration statement, as amended as of the date of the Agreement is hereinafter referred to as the "Registration Statement," and the prospectus included in such Registration Statement, as supplemented to reflect the terms of the Certificates as first filed with the Commission after the date of this Agreement pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of 1933, as amended (the "“Act"”), in conformity with the rules and regulations (the “Rules and Regulations”) of the Commission, of Mortgage Pass-Through Certificates and Mortgage Pass-Through Notes (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(vii) or (x) under the Act and complies in all other material respects with such Rule. As used in this Underwriting Agreement, “Effective Time” means the date and the time as of which the latter of (i) such Registration Statement, or the most recent post effective amendment thereto, if any, was declared effective by the Commission or (ii) the document most recently filed with the Commission was incorporated into such Registration Statement; “Effective Date” means the date of the Effective Time; “Registration Statement” means such registration statement, at the Effective Time, including all material any documents incorporated by reference therein, is hereinafter referred to as therein at such time; and “Prospectus” means the "Prospectus," a "preliminary prospectus" means any form of final prospectus, including any as first supplemented by a prospectus supplementsupplement dated December 20, 2006 (the “Prospectus Supplement”) relating to the Certificates used prior Notes, as first filed with the Commission pursuant to date paragraph (1) or (4) or (5) of this Agreement Rule 424(b) of the Rules and Regulations; and “Pricing Free Writing Prospectus” means the free writing prospectus relating to the Offered Notes dated December 11, 2006 that is subject has been filed with the Commission pursuant to completion.
(b) Rule 433 of the Rules and Regulations. Reference made herein to the Prospectus shall be deemed to refer to and include any documents incorporated by reference in such Registration Statement or such Prospectus (or any amendment thereof or supplement thereto). The Depositor acknowledges that any information furnished by the Representative specifically for use in the Registration Statement, any preliminary prospectus or the Prospectus is the Underwriters' Information.
(c) The Depositor meets the requirements for use therein pursuant to Item 12 of Form S-3 under the Act.
(d) The documents incorporated by , as of the date of the Prospectus and any reference in to any amendment or supplement to the Registration Statement Prospectus shall be deemed to refer to and Prospectus, at the time they were or hereafter are include any document filed with the Commission, complied and will comply in all material respects with the requirements of under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), and after the rules and regulations date of the Commission thereunder.
(e) Each of the Depositor, BDFS Prospectus and each Originator is a corporation duly organized, validly existing and in good standing under the laws of its respective state of incorporation, is duly qualified to transact business as a foreign corporation in each jurisdiction in which it is required to be so qualified and has all necessary licenses, permits and consents to conduct its business as presently conducted and as described incorporated by reference in the Prospectus and to perform its obligations under the Basic Documents.
(f) This Agreement has been duly authorized, executed and delivered by the Depositor and BDFS and constitutes a valid and binding agreement of each of the Depositor and BDFS, enforceable against the Depositor and BDFS in accordance with its terms, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors' rights generally, (y) to general principles of equity (regardless of and whether the enforcement of such remedies is considered in a proceeding in equity or at law) and (z) with respect to rights of indemnity under this Agreement, to limitations of public policy under applicable securities laws.
(g) None of the Depositor, BDFS or any of the Originators is in breach or violation of any credit or security agreement or other agreement or instrument to which it is a party or by which it or its properties may be bound, or in violation of any applicable law, statute, regulation or ordinance or any governmental body having jurisdiction over it, which breach or violation would have a material and adverse effect on its ability to perform its obligations under this Agreement or any of the Basic Documents, in each case, to which it is a party.
(h) Other than as contemplated by this Agreement or as disclosed in the Prospectus, there is no broker, finder or other party that is entitled to receive from the Depositor, BDFS, any Originator or any affiliate thereof or the Underwriters, any brokerage or finder's fee or other fee or commission as a result of any of the transactions contemplated by this Agreement.
(j) The Trust is not an "investment company" and is not required to be registered as an "investment company," as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act").
(k) As of the Closing Date (as defined below), the representations and warranties of BDFS, the Depositor and each of the Originators, in each of its capacities under each of the Basic Documents, to which it is a party will be true and correct in all material respects and each such representation and warranty is so incorporated herein by this reference.
(l) The Depositor has filed the preliminary prospectus supplement relating to the Certificates pursuant to and in accordance with Rule 424(b).
(m) On or before the Closing Date, the Basic Documents will have been duly authorized, executed and delivered by each of the parties thereto.
(n) Each Originator's assignment and sale of the Receivables it will sell to BDFS pursuant to the Loan Sale Agreement on the Closing Date will vest in the BDFS all of such Originator's right, title and interest to such Receivables
(o) The BDFS's assignment and sale of the Receivables to the Depositor on the Closing Date will vest in the Depositor all of BDFS's right, title and interest therein.
(p) The Depositor's assignment and sale of the Receivables to the Trust on the Closing Date will vest in the Trust all the Depositor's right, title and interest therein, or will result in a first priority perfected security interest therein, in either case subject to no other outstanding Lien.
(q) The Certificates, when duly and validly executed by the Trustee, authenticated and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for pursuant hereto will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement.
(s) There are no legal or governmental proceedings pending to which the Depositor, BDFS or any Originator is a party or of which any of its properties is the subject, which if determined adversely to the Depositor, BDFS or any Originator would individually or in the aggregate have a material adverse effect on the financial position, shareholders' equity or results of operations of any of them; and to the best of the Depositor's or BDFS's knowledge, no such proceedings are threatened or contemplated by governmental authorities or others.
(t) No consent, license, approval, authorization or order of or declaration or filing with any governmental authority is required for the issuance or sale of the Certificates or the consummation of the other transactions contemplated by this Agreement or the Basic Documents, except such as have been duly made or obtained.
(u) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change, or any development which could reasonably be expected to result in a material adverse change, in or affecting the financial position, shareholders' equity or results of operations of the Depositor, BDFS or any Originator or the Depositor's, BDFS's or any Originator's ability to perform its obligations under this Agreement or any of the Basic Documents to which it is a party.
(v) Any taxes, fees and other governmental charges due on or prior to the Closing Date (including, without limitation, sales taxes) in connection Date; and any reference to any amendment to the Registration Statement shall be deemed to include any report filed with the executionCommission with respect to the Trust pursuant to Section 13(a) or 15(d) of the Exchange Act as of the Effective Time that is incorporated by reference in the Registration Statement. As of the date hereof and at the Closing Date, delivery there are no contracts or documents of the Depositor which are required to be filed as exhibits to the Registration Statement pursuant to the Act or the Rules and issuance of this Agreement, the Basic Documents and the Certificates Regulations on or prior to each such date which have not been so filed or will have been paid at incorporated by reference therein on or prior to the Closing Date.
(w) The Receivables are chattel paper as defined in the Uniform Commercial Code as in effect in the State of [Florida].
(x) Under generally accepted accounting principles, each Originator will report its transfer effective date of the Receivables transferred by it to BDFS pursuant to the Loan Sale Agreement Registration Statement. The conditions for use as a Sale of the Receivables, BDFS will report its transfer Effective Time by the Depositor of the Receivables transferred by it to Registration Statement on Form S-3 under the Depositor pursuant to the Loan Purchase Agreement as a sale of the Receivables, and the Depositor will report its transfer of the Receivables to the Trustee pursuant to the Pooling and Servicing Agreement as a sale of the Receivables. Each of BDFS, each of the Originators and the Depositor has Act have been advised by ___________ that the transfer will be so classified under generally accepted accounting principles in accordance with Statement No. 77 of the Financial Accounting Standards Board. Each of BDFS, each of the Originators and the Depositor will also report such transfer in all financial statements and reports prepared by it in accordance with applicable regulatory accounting principlessatisfied.
(y) The Originators, pursuant to the Loan Sale Agreement, are transferring to the BDFS ownership of the Receivables, the security interest in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, and, immediately prior to the transfer thereof to BDFS, BDFS will be the sole owner of all right, title and interest in, and will have good and marketable title to, the Receivables and the other property to be transferred by it to BDFS. BDFS, pursuant to the Loan Purchase Agreement, is transferring to the Depositor ownership of the Receivables, the security interest in the -5- Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, and, immediately prior to the transfer thereof to the Depositor, BDFS will be the sole owner of all right, title and interest in, and will have good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Pooling and Servicing Agreement, vests in the Trust all interests which are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances.
(z) Immediately prior to the transfer of the Receivables to the Trust, BDFS's interest in the Receivables and the proceeds thereof shall be perfected upon the filing of UCC-1 financing statements (the "Financing Statements") in the offices specified in Schedule I, the Depositor's interest in the Receivables and the proceeds thereof shall be perfected upon the filing of UCC-1 financing statements (the "Financing Statements") in the offices specified in Schedule I, and there shall be no unreleased statements affecting the Receivables filed in such offices other than the Financing Statements. If a court concludes that the transfer of the Receivables from (i) BDFS to the Depositor is a sale, the interest of the Depositor in the Receivables and the proceeds thereof will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of [New York] and (ii) the Depositor to the Trust is a sale, the interest of the Trust in the Receivables and the proceeds thereof will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of New York. If a court concludes that each such transfer is not a sale, the Pooling and Servicing Agreement and the transactions contemplated thereby constitute a grant by BDFS to the Depositor and the Depositor to the Trust of a valid security interest in the Receivables and the proceeds thereof, which security interest will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of New York and [Florida]. No filing or other action, other than the filing of the Financing Statements in the office of the Secretary of State of the State of New York [and Florida] referred to above, is necessary to perfect and maintain the interest or the security interest of the Trust in the Receivables and the proceeds thereof against third parties.]
(aa) As of the Closing Date, each of the respective representations and warranties of the Depositor, BDFS, and each of the Originators set forth in the Basic Documents will be true and correct, and the Underwriters may rely on such representations and warranties as if they were set forth herein in full.
(bb) In connection with the offering of the Certificates in the State of Florida, the Depositor hereby certifies that it has complied with all provisions of Section 5.17.075 of the Florida Securities and Investor Protection Act.
Appears in 1 contract
Samples: Underwriting Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H4)
Representations and Warranties of the Depositor and the Sponsor. Each of the (a) The Depositor and the Sponsor jointly and severally represents and warrants to and agrees with the Underwriters that:
(ai) A registration statement on Form S-3 (No. 333-26675), including a prospectus, relating to the Certificates The Depositor has been filed with the Securities and Exchange Commission (the "“Commission"”), a registration statement (No. 333-132042) and has become effective. Such on Form S-3 for the registration statement, as amended as of the date of the Agreement is hereinafter referred to as the "Registration Statement," and the prospectus included in such Registration Statement, as supplemented to reflect the terms of the Certificates as first filed with the Commission after the date of this Agreement pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Securities Act of 1933, as amended (the "“Act"”), in conformity with the rules and regulations (the “Rules and Regulations”) of the Commission, of Mortgage Pass Through Certificates and Mortgage Pass-Through Notes (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(vii) or (x) under the Act and complies in all other material respects with such Rule. As used in this Underwriting Agreement, “Effective Time” means the date and the time as of which the latter of (i) such Registration Statement, or the most recent post effective amendment thereto, if any, was declared effective by the Commission or (ii) the document most recently filed with the Commission was incorporated into such Registration Statement; “Effective Date” means the date of the Effective Time; “Registration Statement” means such registration statement, at the Effective Time, including all material any documents incorporated by reference therein, is hereinafter referred to as therein at such time; and “Prospectus” means the "Prospectus," a "preliminary prospectus" means any form of final prospectus, including any as first supplemented by a prospectus supplementsupplement dated June 26, 2006 (the “Prospectus Supplement”) relating to the Certificates used prior Notes, as first filed with the Commission pursuant to date paragraph (1) or (4) or (5) of this Agreement Rule 424(b) of the Rules and Regulations; and “Pricing Free Writing Prospectus” means the free writing prospectus relating to the Offered Notes dated June 23, 2006 that is subject has been filed with the Commission pursuant to completion.
(b) Rule 433 of the Rules and Regulations. Reference made herein to the Prospectus shall be deemed to refer to and include any documents incorporated by reference in such Registration Statement or such Prospectus (or any amendment thereof or supplement thereto). The Depositor acknowledges that any information furnished by the Representative specifically for use in the Registration Statement, any preliminary prospectus or the Prospectus is the Underwriters' Information.
(c) The Depositor meets the requirements for use therein pursuant to Item 12 of Form S-3 under the Act.
(d) The documents incorporated by , as of the date of the Prospectus and any reference in to any amendment or supplement to the Registration Statement Prospectus shall be deemed to refer to and Prospectus, at the time they were or hereafter are include any document filed with the Commission, complied and will comply in all material respects with the requirements of under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”), and after the rules and regulations date of the Commission thereunder.
(e) Each of the Depositor, BDFS Prospectus and each Originator is a corporation duly organized, validly existing and in good standing under the laws of its respective state of incorporation, is duly qualified to transact business as a foreign corporation in each jurisdiction in which it is required to be so qualified and has all necessary licenses, permits and consents to conduct its business as presently conducted and as described incorporated by reference in the Prospectus and to perform its obligations under the Basic Documents.
(f) This Agreement has been duly authorized, executed and delivered by the Depositor and BDFS and constitutes a valid and binding agreement of each of the Depositor and BDFS, enforceable against the Depositor and BDFS in accordance with its terms, subject as to the enforcement of remedies (x) to applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors' rights generally, (y) to general principles of equity (regardless of and whether the enforcement of such remedies is considered in a proceeding in equity or at law) and (z) with respect to rights of indemnity under this Agreement, to limitations of public policy under applicable securities laws.
(g) None of the Depositor, BDFS or any of the Originators is in breach or violation of any credit or security agreement or other agreement or instrument to which it is a party or by which it or its properties may be bound, or in violation of any applicable law, statute, regulation or ordinance or any governmental body having jurisdiction over it, which breach or violation would have a material and adverse effect on its ability to perform its obligations under this Agreement or any of the Basic Documents, in each case, to which it is a party.
(h) Other than as contemplated by this Agreement or as disclosed in the Prospectus, there is no broker, finder or other party that is entitled to receive from the Depositor, BDFS, any Originator or any affiliate thereof or the Underwriters, any brokerage or finder's fee or other fee or commission as a result of any of the transactions contemplated by this Agreement.
(j) The Trust is not an "investment company" and is not required to be registered as an "investment company," as such term is defined in the Investment Company Act of 1940, as amended (the "Investment Company Act").
(k) As of the Closing Date (as defined below), the representations and warranties of BDFS, the Depositor and each of the Originators, in each of its capacities under each of the Basic Documents, to which it is a party will be true and correct in all material respects and each such representation and warranty is so incorporated herein by this reference.
(l) The Depositor has filed the preliminary prospectus supplement relating to the Certificates pursuant to and in accordance with Rule 424(b).
(m) On or before the Closing Date, the Basic Documents will have been duly authorized, executed and delivered by each of the parties thereto.
(n) Each Originator's assignment and sale of the Receivables it will sell to BDFS pursuant to the Loan Sale Agreement on the Closing Date will vest in the BDFS all of such Originator's right, title and interest to such Receivables
(o) The BDFS's assignment and sale of the Receivables to the Depositor on the Closing Date will vest in the Depositor all of BDFS's right, title and interest therein.
(p) The Depositor's assignment and sale of the Receivables to the Trust on the Closing Date will vest in the Trust all the Depositor's right, title and interest therein, or will result in a first priority perfected security interest therein, in either case subject to no other outstanding Lien.
(q) The Certificates, when duly and validly executed by the Trustee, authenticated and delivered in accordance with the Pooling and Servicing Agreement, and delivered to and paid for pursuant hereto will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement.
(s) There are no legal or governmental proceedings pending to which the Depositor, BDFS or any Originator is a party or of which any of its properties is the subject, which if determined adversely to the Depositor, BDFS or any Originator would individually or in the aggregate have a material adverse effect on the financial position, shareholders' equity or results of operations of any of them; and to the best of the Depositor's or BDFS's knowledge, no such proceedings are threatened or contemplated by governmental authorities or others.
(t) No consent, license, approval, authorization or order of or declaration or filing with any governmental authority is required for the issuance or sale of the Certificates or the consummation of the other transactions contemplated by this Agreement or the Basic Documents, except such as have been duly made or obtained.
(u) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any material adverse change, or any development which could reasonably be expected to result in a material adverse change, in or affecting the financial position, shareholders' equity or results of operations of the Depositor, BDFS or any Originator or the Depositor's, BDFS's or any Originator's ability to perform its obligations under this Agreement or any of the Basic Documents to which it is a party.
(v) Any taxes, fees and other governmental charges due on or prior to the Closing Date (including, without limitation, sales taxes) in connection Date; and any reference to any amendment to the Registration Statement shall be deemed to include any report filed with the executionCommission with respect to the Trust pursuant to Section 13(a) or 15(d) of the Exchange Act as of the Effective Time that is incorporated by reference in the Registration Statement. As of the date hereof and at the Closing Date, delivery there are no contracts or documents of the Depositor which are required to be filed as exhibits to the Registration Statement pursuant to the Act or the Rules and issuance of this Agreement, the Basic Documents and the Certificates Regulations on or prior to each such date which have not been so filed or will have been paid at incorporated by reference therein on or prior to the Closing Date.
(w) The Receivables are chattel paper as defined in the Uniform Commercial Code as in effect in the State of [Florida].
(x) Under generally accepted accounting principles, each Originator will report its transfer effective date of the Receivables transferred by it to BDFS pursuant to the Loan Sale Agreement Registration Statement. The conditions for use as a Sale of the Receivables, BDFS will report its transfer Effective Time by the Depositor of the Receivables transferred by it to Registration Statement on Form S-3 under the Depositor pursuant to the Loan Purchase Agreement as a sale of the Receivables, and the Depositor will report its transfer of the Receivables to the Trustee pursuant to the Pooling and Servicing Agreement as a sale of the Receivables. Each of BDFS, each of the Originators and the Depositor has Act have been advised by ___________ that the transfer will be so classified under generally accepted accounting principles in accordance with Statement No. 77 of the Financial Accounting Standards Board. Each of BDFS, each of the Originators and the Depositor will also report such transfer in all financial statements and reports prepared by it in accordance with applicable regulatory accounting principlessatisfied.
(y) The Originators, pursuant to the Loan Sale Agreement, are transferring to the BDFS ownership of the Receivables, the security interest in the Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, and, immediately prior to the transfer thereof to BDFS, BDFS will be the sole owner of all right, title and interest in, and will have good and marketable title to, the Receivables and the other property to be transferred by it to BDFS. BDFS, pursuant to the Loan Purchase Agreement, is transferring to the Depositor ownership of the Receivables, the security interest in the -5- Financed Vehicles securing the Receivables and the proceeds of each of the foregoing, and, immediately prior to the transfer thereof to the Depositor, BDFS will be the sole owner of all right, title and interest in, and will have good and marketable title to, the Receivables and the other property to be transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trust, pursuant to the Pooling and Servicing Agreement, vests in the Trust all interests which are purported to be conveyed thereby, free and clear of any liens, security interests or encumbrances.
(z) Immediately prior to the transfer of the Receivables to the Trust, BDFS's interest in the Receivables and the proceeds thereof shall be perfected upon the filing of UCC-1 financing statements (the "Financing Statements") in the offices specified in Schedule I, the Depositor's interest in the Receivables and the proceeds thereof shall be perfected upon the filing of UCC-1 financing statements (the "Financing Statements") in the offices specified in Schedule I, and there shall be no unreleased statements affecting the Receivables filed in such offices other than the Financing Statements. If a court concludes that the transfer of the Receivables from (i) BDFS to the Depositor is a sale, the interest of the Depositor in the Receivables and the proceeds thereof will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of [New York] and (ii) the Depositor to the Trust is a sale, the interest of the Trust in the Receivables and the proceeds thereof will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of New York. If a court concludes that each such transfer is not a sale, the Pooling and Servicing Agreement and the transactions contemplated thereby constitute a grant by BDFS to the Depositor and the Depositor to the Trust of a valid security interest in the Receivables and the proceeds thereof, which security interest will be perfected upon the filing of the Financing Statements in the office of the Secretary of State of the State of New York and [Florida]. No filing or other action, other than the filing of the Financing Statements in the office of the Secretary of State of the State of New York [and Florida] referred to above, is necessary to perfect and maintain the interest or the security interest of the Trust in the Receivables and the proceeds thereof against third parties.]
(aa) As of the Closing Date, each of the respective representations and warranties of the Depositor, BDFS, and each of the Originators set forth in the Basic Documents will be true and correct, and the Underwriters may rely on such representations and warranties as if they were set forth herein in full.
(bb) In connection with the offering of the Certificates in the State of Florida, the Depositor hereby certifies that it has complied with all provisions of Section 5.17.075 of the Florida Securities and Investor Protection Act.
Appears in 1 contract
