Agreements and Representations. The Company agrees with each Underwriter that: (a) The Company will cause each of the Preliminary Prospectus and the Prospectus relating to the Offered Securities of the applicable Series to be filed in compliance with Rule 433 and Rule 424 under the Act, respectively, and, if necessary, within 4 days of the applicable Closing Date, will file a report on Form 8-K setting forth specific information concerning the Trust Assets and will promptly advise each Underwriter when such Preliminary Prospectus and such Prospectus as so supplemented have been so filed, and prior to the termination of the Offering to which such Preliminary Prospectus and Prospectus relate also will promptly advise each Underwriter (i) when any amendment to the related Registration Statement specifically relating to such Offered Securities shall have become effective or any further supplement to such Preliminary Prospectus or such Prospectus has been filed, (ii) of any request by the Commission for any amendment of such Registration Statement, Preliminary Prospectus or Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Company of any written notification with respect to the suspension of the qualification of such Offered Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of the related Registration Statement or supplement to the related Preliminary Prospectus or Prospectus (other than any amendment or supplement specifically relating to one or more Series of asset-backed securities other than the Series that includes the related Offered Securities) unless (i) the Company has given reasonable notice to the Underwriters of its intention to file any such amendment or supplement, (ii) the Company has furnished the Underwriters with a copy for their review within a reasonable time prior to filing, and (iii) the Underwriters do not reasonably object to the filing of such amendment or supplement. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (b) If, at any time when a prospectus relating to the Offered Securities of the applicable Series is required to be delivered under the Act, any event occurs as a result of which the related Prospectus as then amended or supplemented would 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, in light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the related Prospectus to comply with the Act, the TIA or the rules thereunder, the Company promptly will prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. (c) The Company will furnish to each Underwriter and counsel for the Underwriters, without charge, as many conformed copies of the related Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriters or a dealer may be required by the Act, as many copies of the related Preliminary Prospectus and the related Prospectus and any supplements thereto, as the Underwriters may reasonably request. (d) The Company will, as between itself and the Underwriters, pay all expenses incidental to the performance of its obligations under this Agreement, including without limitation (i) expenses of preparing, printing and reproducing the related Registration Statement, the related Preliminary Prospectus, the related Prospectus, the Transaction Documents and the Offered Securities, (ii) the cost of delivering the Offered Securities of the applicable Series to the Underwriters, insured to the reasonable satisfaction of the Underwriters, (iii) the fees charged by securities rating services for rating the Offered Securities of the applicable Series, (iv) the fees and expenses of the Trustee, the Owner Trustee and/or the Indenture Trustee, as applicable, except for fees and expenses of their respective counsel which will be borne by them and (v) all other costs and expenses incidental to the performance by the Company of the Company’s obligations hereunder which are not otherwise specifically provided for in this subsection. It is understood that, except as provided in this paragraph (d) and in Section 13 hereof, each Underwriter will pay all of its own expenses, including (i) the fees of any counsel to such Underwriter, (ii) any transfer taxes on resale of any of the Offered Securities by it, (iii) any advertising expenses connected with any offers that such Underwriter may make and (iv) any expenses for the qualification of the Offered Securities of the applicable Series under “blue sky” or state securities laws, including filing fees and the fee and disbursements of counsel in connection therewith and in connection with the preparation of any Blue Sky Survey. (e) So long as any Offered Securities of the applicable Series are outstanding, upon request of any Underwriter, the Company will, or will cause the Servicer to, furnish to such Underwriter, as soon as available, a copy of (i) the annual statement of compliance delivered by the Servicer pursuant to the applicable Transaction Document, (ii) the annual independent public accountants’ servicing report furnished pursuant to the applicable Transaction Document, (iii) each report of the Company regarding the Offered Securities of the applicable Series filed with the Commission under the Exchange Act or mailed to the holders of such Offered Securities and (iv) from time to time, such other information concerning such Offered Securities which may be furnished by the Company or the Servicer without undue expense and without violation of applicable law. (f) The Company will furnish such information, execute such instruments and take such actions as may be reasonably requested by the Underwriters to qualify the Offered Securities of a Series for sale under the laws of such jurisdictions as the Underwriters may designate, to maintain such qualifications in effect so long as required for the distribution of such Offered Securities and to determine the legality of such Offered Securities for purchase by investors; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not qualified on the date of the related Terms Agreement or to take any action which would subject it to general or unlimited service of process or corporate or franchise taxation as a foreign corporation in any jurisdiction in which it is not, on the date of the related Terms Agreement, subject to such service of process or such taxation. (g) The Company will file or cause to be filed with the Commission such Free Writing Prospectus that is either an Issuer Free Writing Prospectus (as defined in Section (9) hereof) or contains Issuer Information as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Act. (h) The Company will timely file all reports with respect to the Trust required to be filed under the Exchange Act. (i) No fiduciary duty. Notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters, the Seller acknowledges and agrees that in connection with the offering,: (i) there exists no fiduciary or agency relationship among the Seller and the Underwriters; (ii) the relationship among the Seller and the Underwriters, is entirely and solely commercial, based on arms-length negotiations and the Underwriters are not acting as advisors, experts or otherwise, to the Seller; (iii) notwithstanding anything in this Underwriting Agreement to the contrary, the Seller acknowledges that the Underwriters may have financial interests in connection with the Offering in addition to the difference between the price to the public and the purchase price paid to the Seller by the Underwriters for the shares and the Underwriters have no obligation to disclose, or account to the Seller for, any of such additional financial interests. The Seller hereby waives and releases, to the fullest extent permitted by law, any claims that the Seller may have against the Underwriters with respect to any breach or alleged breach of fiduciary duty in connection with the Offering. (j) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000, each Underwriter hereby represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Certificates to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Certificates which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates to the public in that Relevant Member State at any time: (i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; (ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net revenue of more than €50,000,000, as shown in its last annual or consolidated accounts; or (iii) in any other circumstances which do not require the publication by the Depositor of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this representation, the expression an “offer of Certificates to the public” in relation to any Certificates in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe the Certificates, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State. (k) Each Underwriter hereby further represents and agrees that, with respect to the United Kingdom and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000: (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act) received by it in connection with the issue or sale of the Certificates in circumstances in which Section 21(1) of the Financial Services and Markets Act does not apply to the Issuer; and (ii) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act with respect to anything done by it in relation to the Certificates in, from or otherwise involving the United Kingdom.
Appears in 2 contracts
Sources: Underwriting Agreement (Indymac Abs Inc), Underwriting Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series INABS 2006-B)
Agreements and Representations. The Company agrees with each Underwriter that:
(a) The Company has caused and will cause each of the Preliminary Free Writing Prospectus and the Prospectus relating to the Offered Securities of the applicable Series to be filed in compliance with Rule 433 and Rule 424 under the Act, respectively, and, if necessary, within 4 days of the applicable Closing Date, will file a report on Form 8-K setting forth specific information concerning the Trust Assets and will promptly advise each Underwriter when such Preliminary Free Writing Prospectus and such Prospectus as so supplemented have been so filed, and prior to the termination of the Offering to which such Preliminary Free Writing Prospectus and Prospectus relate also will promptly advise each Underwriter (i) when any amendment to the related Registration Statement specifically relating to such Offered Securities shall have become effective or any further supplement to such Preliminary Prospectus or such Prospectus has been filed, (ii) of any request by the Commission for any amendment of such Registration Statement, Preliminary Free Writing Prospectus or Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Company of any written notification with respect to the suspension of the qualification of such Offered Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of the related Registration Statement or supplement to the related Preliminary Free Writing Prospectus or Prospectus (other than any amendment or supplement specifically relating to one or more Series of asset-backed securities other than the Series that includes the related Offered Securities) unless (i) the Company has given reasonable notice to the Underwriters of its intention to file any such amendment or supplement, (ii) the Company has furnished the Underwriters with a copy for their review within a reasonable time prior to filing, and (iii) the Underwriters do not reasonably object to the filing of such amendment or supplement. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Securities of the applicable Series is required to be delivered under the Act, any event occurs as a result of which the related Prospectus as then amended or supplemented would 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, in light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the related Prospectus to comply with the Act, the TIA or the rules thereunder, the Company promptly will prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.
(c) The Company will furnish to each Underwriter and counsel for the Underwriters, without charge, as many conformed copies of the related Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriters or a dealer may be required by the Act, as many copies of the related Preliminary Prospectus and the related Prospectus and any supplements thereto, as the Underwriters may reasonably request.
(d) The Company will, as between itself and the Underwriters, pay all expenses incidental to the performance of its obligations under this Agreement, including without limitation (i) expenses of preparing, printing and reproducing the related Registration Statement, the related Preliminary Free Writing Prospectus, the related Prospectus, the Transaction Documents and the Offered Securities, (ii) the cost of delivering the Offered Securities of the applicable Series to the Underwriters, insured to the reasonable satisfaction of the Underwriters, (iii) the fees charged by securities rating services for rating the Offered Securities of the applicable Series, (iv) the fees and expenses of the Trustee, the Owner Trustee and/or the Indenture Trustee, as applicable, except for fees and expenses of their respective counsel which will be borne by them and (v) all other costs and expenses incidental to the performance by the Company of the Company’s obligations hereunder which are not otherwise specifically provided for in this subsection. It is understood that, except as provided in this paragraph (d) and in Section 13 hereof, each Underwriter will pay all of its own expenses, including (i) the fees of any counsel to such Underwriter, (ii) any transfer taxes on resale of any of the Offered Securities by it, (iii) any advertising expenses connected with any offers that such Underwriter may make and (iv) any expenses for the qualification of the Offered Securities of the applicable Series under “blue sky” or state securities laws, including filing fees and the fee and disbursements of counsel in connection therewith and in connection with the preparation of any Blue Sky Survey.
(e) So long as any Offered Securities of the applicable Series are outstanding, upon request of any Underwriter, the Company will, or will cause the Servicer to, furnish to such Underwriter, as soon as available, a copy of (i) the annual statement of compliance delivered by the Servicer pursuant to the applicable Transaction Document, (ii) the annual independent public accountants’ servicing report furnished pursuant to the applicable Transaction Document, (iii) each report of the Company regarding the Offered Securities of the applicable Series filed with the Commission under the Exchange Act or mailed to the holders of such Offered Securities and (iv) from time to time, such other information concerning such Offered Securities which may be furnished by the Company or the Servicer without undue expense and without violation of applicable law.
(f) The Company will furnish such information, execute such instruments and take such actions as may be reasonably requested by the Underwriters to qualify the Offered Securities of a Series for sale under the laws of such jurisdictions as the Underwriters may designate, to maintain such qualifications in effect so long as required for the distribution of such Offered Securities and to determine the legality of such Offered Securities for purchase by investors; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not qualified on the date of the related Terms Agreement or to take any action which would subject it to general or unlimited service of process or corporate or franchise taxation as a foreign corporation in any jurisdiction in which it is not, on the date of the related Terms Agreement, subject to such service of process or such taxation.
(g) The Company will file or cause to be filed with the Commission such Free Writing Prospectus that is either an Issuer Free Writing Prospectus (as defined in Section (9) hereof) or contains Issuer Information as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Act. All written and graphic communications relating to the Offered Certificates used prior to the availability of the Prospectus will comply with the requirements of Rule 433, including the inclusion of the legend required by Rule 433(c)(2). To the extent prepared by or on behalf of the Company or to the extent that the Underwriters have provided to the Company ABS ICM or a [Free Writing Prospectus][Preliminary Term Sheet] (as defined in Section 9 hereof) which such Underwriter has conveyed to a prospective investor, the Company will file or cause to be filed with the Commission such ABS ICM or such [Free Writing Prospectus][Preliminary Term Sheet] as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Act; provided, however, that the Company shall not be required to file (A) any [Free Writing Prospectus][Preliminary Term Sheet], if the information included therein is included or incorporated by reference in a prospectus or [Free Writing Prospectus][Preliminary Term Sheet] previously filed with the Commission that relates to the offering of the Offered Certificates, or (B) any [Free Writing Prospectus][Preliminary Term Sheet] or portion thereof that contains a description of the Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof.
(h) The Company will timely file all reports with respect to the Trust required to be filed under the Exchange Act.
(i) No fiduciary duty. Notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters, the Seller acknowledges and agrees that in connection with the offering,: (i) there exists no fiduciary fiduciary, financial advisory or agency relationship among the Seller and the Underwriters; (ii) the relationship among the Seller and the Underwriters, is entirely and solely commercial, based on arms-length negotiations and the Underwriters are not acting as advisors, experts or otherwise, to the Seller; (iii) notwithstanding anything in this Underwriting Agreement to the contrary, the Seller acknowledges that the Underwriters may have financial interests in connection with the Offering in addition to the difference between the price to the public and the purchase price paid to the Seller by the Underwriters for the shares and the Underwriters have no obligation to disclose, or account to the Seller for, any of such additional financial interests. The Seller hereby waives and releases, to the fullest extent permitted by law, any claims that the Seller may have against the Underwriters with respect to any breach or alleged breach of fiduciary duty in connection with the Offering. Additionally, the Underwriters are not advising the Seller or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction, and the Seller shall be responsible for making its own independent investigation of such matters.
(j) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000, each Underwriter hereby represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Certificates Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Certificates Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates Securities to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net revenue of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the Depositor of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this representation, the expression an “offer of Certificates Securities to the public” in relation to any Certificates Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates Securities to be offered so as to enable an investor to decide to purchase or subscribe the CertificatesSecurities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
(k) Each Underwriter hereby further represents and agrees that, with respect to the United Kingdom and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000:
(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act) received by it in connection with the issue or sale of the Certificates Securities in circumstances in which Section 21(1) of the Financial Services and Markets Act does not apply to the IssuerCompany; and
(ii) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act with respect to anything done by it in relation to the Certificates Securities in, from or otherwise involving the United Kingdom.
Appears in 2 contracts
Sources: Underwriting Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2006-L4), Underwriting Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2006-L3)
Agreements and Representations. The Company agrees with each Underwriter that:
(a) The Company will cause each of the Preliminary Issuer Free Writing Prospectus and the Prospectus relating to the Offered Securities of the applicable Series to be filed in compliance with Rule 433 and Rule 424 under the Act, respectively, and, if necessary, within 4 days of the applicable Closing Date, will file a report on Form 8-K setting forth specific information concerning the Trust Assets and will promptly advise each Underwriter when such Preliminary Prospectus and such Prospectus as so supplemented have been so filed, and prior to the termination of the Offering to which such Preliminary Issuer Free Writing Prospectus and Prospectus relate also will promptly advise each Underwriter (i) when any amendment to the related Registration Statement specifically relating to such Offered Securities shall have become effective or any further supplement to such Preliminary Prospectus or such Prospectus has been filed, (ii) of any request by the Commission for any amendment of such Registration Statement, Preliminary Prospectus Statement or Prospectus or for any additional information, (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement or the institution or threatening of any proceeding for that purpose and (iviii) of the receipt by the Company of any written notification with respect to the suspension of the qualification of such Offered Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of the related Registration Statement or supplement to the related Preliminary Issuer Free Writing Prospectus or Prospectus (other than any amendment or supplement specifically relating to one or more Series of asset-backed securities other than the Series that includes the related Offered Securities) unless (i) the Company has given reasonable notice to the Underwriters of its intention to file any such amendment or supplement, (ii) the Company has furnished the Underwriters with a copy for their review within a reasonable time prior to filing, and (iii) the Underwriters do not reasonably object to the filing of such amendment or supplement. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Securities of the applicable Series is required to be delivered under the Act, any event occurs as a result of which the related Prospectus as then amended or supplemented would 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, in light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the related Prospectus to comply with the Act, the TIA or the rules thereunder, the Company promptly will prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.
(c) The Company will furnish to each Underwriter and counsel for the Underwriters, without charge, as many conformed copies of the related Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriters or a dealer may be required by the Act, as many copies of the related Preliminary Issuer Free Writing Prospectus and the related Prospectus and any supplements thereto, as the Underwriters may reasonably request.
(d) The Company will, as between itself and the Underwriters, pay all expenses incidental to the performance of its obligations under this Agreement, including without limitation (i) expenses of preparing, printing and reproducing the related Registration Statement, the related Preliminary Issuer Free Writing Prospectus, the related Prospectus, the Transaction Documents and the Offered Securities, (ii) the cost of delivering the Offered Securities of the applicable Series to the Underwriters, insured to the reasonable satisfaction of the Underwriters, (iii) the fees charged by securities rating services for rating the Offered Securities of the applicable Series, (iv) the fees and expenses of the Trustee, the Owner Trustee and/or the Indenture Trustee, as applicable, except for fees and expenses of their respective counsel which will be borne by them and (v) all other costs and expenses incidental to the performance by the Company of the Company’s obligations hereunder which are not otherwise specifically provided for in this subsection. It is understood that, except as provided in this paragraph (d) and in Section 13 hereof, each Underwriter will pay all of its own expenses, including (i) the fees of any counsel to such Underwriter, (ii) any transfer taxes on resale of any of the Offered Securities by it, (iii) any advertising expenses connected with any offers that such Underwriter may make and (iv) any expenses for the qualification of the Offered Securities of the applicable Series under “blue sky” or state securities laws, including filing fees and the fee and disbursements of counsel in connection therewith and in connection with the preparation of any Blue Sky Survey.
(e) So long as any Offered Securities of the applicable Series are outstanding, upon request of any Underwriter, the Company will, or will cause the Servicer to, furnish to such Underwriter, as soon as available, a copy of (i) the annual statement of compliance delivered by the Servicer pursuant to the applicable Transaction Document, (ii) the annual independent public accountants’ servicing report furnished pursuant to the applicable Transaction Document, (iii) each report of the Company regarding the Offered Securities of the applicable Series filed with the Commission under the Exchange Act or mailed to the holders of such Offered Securities and (iv) from time to time, such other information concerning such Offered Securities which may be furnished by the Company or the Servicer without undue expense and without violation of applicable law.
(f) The Company will furnish such information, execute such instruments and take such actions as may be reasonably requested by the Underwriters to qualify the Offered Securities of a Series for sale under the laws of such jurisdictions as the Underwriters may designate, to maintain such qualifications in effect so long as required for the distribution of such Offered Securities and to determine the legality of such Offered Securities for purchase by investors; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not qualified on the date of the related Terms Agreement or to take any action which would subject it to general or unlimited service of process or corporate or franchise taxation as a foreign corporation in any jurisdiction in which it is not, on the date of the related Terms Agreement, subject to such service of process or such taxation.
(g) The Company will file or cause to be filed with the Commission such any Free Writing Prospectus that is either an Issuer Free Writing Prospectus (as defined in Section (9) hereof) or contains Issuer Information as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Act.
(h) The Company will timely file all reports with respect to the Trust required to be filed under the Exchange Act.
(i) No fiduciary duty. Notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters, the Seller acknowledges and agrees that in connection with the offering,: (i) there exists no fiduciary or agency relationship among the Seller and the Underwriters; (ii) the relationship among the Seller and the Underwriters, is entirely and solely commercial, based on arms-length negotiations and the Underwriters are not acting as advisors, experts or otherwise, to the Seller; (iii) notwithstanding anything in this Underwriting Agreement to the contrary, the Seller acknowledges that the Underwriters may have financial interests in connection with the Offering in addition to the difference between the price to the public and the purchase price paid to the Seller by the Underwriters for the shares and the Underwriters have no obligation to disclose, or account to the Seller for, any of such additional financial interests. The Seller hereby waives and releases, to the fullest extent permitted by law, any claims that the Seller may have against the Underwriters with respect to any breach or alleged breach of fiduciary duty in connection with the Offering.
(j) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000, each Underwriter hereby represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Certificates to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Certificates which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net revenue of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the Depositor of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this representation, the expression an “offer of Certificates to the public” in relation to any Certificates in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe the Certificates, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
(k) Each Underwriter hereby further represents and agrees that, with respect to the United Kingdom and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000:
(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act) received by it in connection with the issue or sale of the Certificates in circumstances in which Section 21(1) of the Financial Services and Markets Act does not apply to the Issuer; and
(ii) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act with respect to anything done by it in relation to the Certificates in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Agreements and Representations. The Company agrees with each Underwriter that:
(a) The Company will cause each of the Preliminary Prospectus and the Prospectus relating to the Offered Securities of the applicable Series to be filed in compliance with Rule 433 and Rule 424 under the Act, respectively, and, if necessary, within 4 days of the applicable Closing Date, will file a report on Form 8-K setting forth specific information concerning the Trust Assets and will promptly advise each Underwriter when such Preliminary Prospectus and such Prospectus as so supplemented have been so filed, and prior to the termination of the Offering to which such Preliminary Prospectus and Prospectus relate also will promptly advise each Underwriter (i) when any amendment to the related Registration Statement specifically relating to such Offered Securities shall have become effective or any further supplement to such Preliminary Prospectus or such Prospectus has been filed, (ii) of any request by the Commission for any amendment of such Registration Statement, Preliminary Prospectus or Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Company of any written notification with respect to the suspension of the qualification of such Offered Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of the related Registration Statement or supplement to the related Preliminary Prospectus or Prospectus (other than any amendment or supplement specifically relating to one or more Series of asset-backed securities other than the Series that includes the related Offered Securities) unless (i) the Company has given reasonable notice to the Underwriters of its intention to file any such amendment or supplement, (ii) the Company has furnished the Underwriters with a copy for their review within a reasonable time prior to filing, and (iii) the Underwriters do not reasonably object to the filing of such amendment or supplement. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Securities of the applicable Series is required to be delivered under the Act, any event occurs as a result of which the related Prospectus as then amended or supplemented would 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, in light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the related Prospectus to comply with the Act, the TIA or the rules thereunder, the Company promptly will prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.
(c) The Company will furnish to each Underwriter and counsel for the Underwriters, without charge, as many conformed copies of the related Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriters or a dealer may be required by the Act, as many copies of the related Preliminary Prospectus and the related Prospectus and any supplements thereto, as the Underwriters may reasonably request.
(d) The Company will, as between itself and the Underwriters, pay all expenses incidental to the performance of its obligations under this Agreement, including without limitation (i) expenses of preparing, printing and reproducing the related Registration Statement, the related Preliminary Prospectus, the related Prospectus, the Transaction Documents and the Offered Securities, (ii) the cost of delivering the Offered Securities of the applicable Series to the Underwriters, insured to the reasonable satisfaction of the Underwriters, (iii) the fees charged by securities rating services for rating the Offered Securities of the applicable Series, (iv) the fees and expenses of the Trustee, the Owner Trustee and/or the Indenture Trustee, as applicable, except for fees and expenses of their respective counsel which will be borne by them and (v) all other costs and expenses incidental to the performance by the Company of the Company’s obligations hereunder which are not otherwise specifically provided for in this subsection. It is understood that, except as provided in this paragraph (d) and in Section 13 hereof, each Underwriter will pay all of its own expenses, including (i) the fees of any counsel to such Underwriter, (ii) any transfer taxes on resale of any of the Offered Securities by it, (iii) any advertising expenses connected with any offers that such Underwriter may make and (iv) any expenses for the qualification of the Offered Securities of the applicable Series under “blue sky” or state securities laws, including filing fees and the fee and disbursements of counsel in connection therewith and in connection with the preparation of any Blue Sky Survey.
(e) So long as any Offered Securities of the applicable Series are outstanding, upon request of any Underwriter, the Company will, or will cause the Servicer to, furnish to such Underwriter, as soon as available, a copy of (i) the annual statement of compliance delivered by the Servicer pursuant to the applicable Transaction Document, (ii) the annual independent public accountants’ servicing report furnished pursuant to the applicable Transaction Document, (iii) each report of the Company regarding the Offered Securities of the applicable Series filed with the Commission under the Exchange Act or mailed to the holders of such Offered Securities and (iv) from time to time, such other information concerning such Offered Securities which may be furnished by the Company or the Servicer without undue expense and without violation of applicable law.
(f) The Company will furnish such information, execute such instruments and take such actions as may be reasonably requested by the Underwriters to qualify the Offered Securities of a Series for sale under the laws of such jurisdictions as the Underwriters may designate, to maintain such qualifications in effect so long as required for the distribution of such Offered Securities and to determine the legality of such Offered Securities for purchase by investors; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not qualified on the date of the related Terms Agreement or to take any action which would subject it to general or unlimited service of process or corporate or franchise taxation as a foreign corporation in any jurisdiction in which it is not, on the date of the related Terms Agreement, subject to such service of process or such taxation.
(g) The Company will file or cause to be filed with the Commission such Free Writing Prospectus that is either an Issuer Free Writing Prospectus (as defined in Section (9) hereof) or contains Issuer Information as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Act.
(h) The Company will timely file all reports with respect to the Trust required to be filed under the Exchange Act.
(i) No fiduciary duty. Notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters, the Seller acknowledges and agrees that in connection with the offering,: (i) there exists no fiduciary fiduciary, financial advisory or agency relationship among the Seller and the Underwriters; (ii) the relationship among the Seller and the Underwriters, is entirely and solely commercial, based on arms-length negotiations and the Underwriters are not acting as advisors, experts or otherwise, to the Seller; (iii) notwithstanding anything in this Underwriting Agreement to the contrary, the Seller acknowledges that the Underwriters may have financial interests in connection with the Offering in addition to the difference between the price to the public and the purchase price paid to the Seller by the Underwriters for the shares and the Underwriters have no obligation to disclose, or account to the Seller for, any of such additional financial interests. The Seller hereby waives and releases, to the fullest extent permitted by law, any claims that the Seller may have against the Underwriters with respect to any breach or alleged breach of fiduciary duty in connection with the Offering. Additionally, the Underwriters are not advising the Seller or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction, and the Seller shall be responsible for making its own independent investigation of such matters. This Agreement supersedes all prior agreements and understandings (whether written or oral) among the Company, the Seller and the Underwriters, or any of them, with respect to the subject matter hereof. Each of the Company and the Seller hereby waives and releases, to the fullest extent permitted by law, any claims that either of the Company or the Seller may have against the several Underwriters with respect to any breach or alleged breach of fiduciary duty.
(j) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000, each Underwriter hereby represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Certificates to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Certificates which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net revenue of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the Depositor of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this representation, the expression an “offer of Certificates to the public” in relation to any Certificates in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe the Certificates, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
(k) Each Underwriter hereby further represents and agrees that, with respect to the United Kingdom and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000:
(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act) received by it in connection with the issue or sale of the Certificates in circumstances in which Section 21(1) of the Financial Services and Markets Act does not apply to the Issuer; and
(ii) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act with respect to anything done by it in relation to the Certificates in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (Home Equity Mortgage Loan Asset-Backed Trust, Series Inabs 2007-B)
Agreements and Representations. The Company agrees with each Underwriter that:
(a) The Company has caused and will cause each of the Preliminary Free Writing Prospectus and the Prospectus relating to the Offered Securities of the applicable Series to be filed in compliance with Rule 433 and Rule 424 under the Act, respectively, and, if necessary, within 4 days of the applicable Closing Date, will file a report on Form 8-K setting forth specific information concerning the Trust Assets and will promptly advise each Underwriter when such Preliminary Free Writing Prospectus and such Prospectus as so supplemented have been so filed, and prior to the termination of the Offering to which such Preliminary Free Writing Prospectus and Prospectus relate also will promptly advise each Underwriter (i) when any amendment to the related Registration Statement specifically relating to such Offered Securities shall have become effective or any further supplement to such Preliminary Prospectus or such Prospectus has been filed, (ii) of any request by the Commission for any amendment of such Registration Statement, Preliminary Free Writing Prospectus or Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Company of any written notification with respect to the suspension of the qualification of such Offered Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of the related Registration Statement or supplement to the related Preliminary Free Writing Prospectus or Prospectus (other than any amendment or supplement specifically relating to one or more Series of asset-backed securities other than the Series that includes the related Offered Securities) unless (i) the Company has given reasonable notice to the Underwriters of its intention to file any such amendment or supplement, (ii) the Company has furnished the Underwriters with a copy for their review within a reasonable time prior to filing, and (iii) the Underwriters do not reasonably object to the filing of such amendment or supplement. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Securities of the applicable Series is required to be delivered under the Act, any event occurs as a result of which the related Prospectus as then amended or supplemented would 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, in light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the related Prospectus to comply with the Act, the TIA or the rules thereunder, the Company promptly will prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.
(c) The Company will furnish to each Underwriter and counsel for the Underwriters, without charge, as many conformed copies of the related Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriters or a dealer may be required by the Act, as many copies of the related Preliminary Prospectus and the related Prospectus and any supplements thereto, as the Underwriters may reasonably request.
(d) The Company will, as between itself and the Underwriters, pay all expenses incidental to the performance of its obligations under this Agreement, including without limitation (i) expenses of preparing, printing and reproducing the related Registration Statement, the related Preliminary Free Writing Prospectus, the related Prospectus, the Transaction Documents and the Offered Securities, (ii) the cost of delivering the Offered Securities of the applicable Series to the Underwriters, insured to the reasonable satisfaction of the Underwriters, (iii) the fees charged by securities rating services for rating the Offered Securities of the applicable Series, (iv) the fees and expenses of the Trustee, the Owner Trustee and/or the Indenture Trustee, as applicable, except for fees and expenses of their respective counsel which will be borne by them and (v) all other costs and expenses incidental to the performance by the Company of the Company’s obligations hereunder which are not otherwise specifically provided for in this subsection. It is understood that, except as provided in this paragraph (d) and in Section 13 hereof, each Underwriter will pay all of its own expenses, including (i) the fees of any counsel to such Underwriter, (ii) any transfer taxes on resale of any of the Offered Securities by it, (iii) any advertising expenses connected with any offers that such Underwriter may make and (iv) any expenses for the qualification of the Offered Securities of the applicable Series under “blue sky” or state securities laws, including filing fees and the fee and disbursements of counsel in connection therewith and in connection with the preparation of any Blue Sky Survey.
(e) So long as any Offered Securities of the applicable Series are outstanding, upon request of any Underwriter, the Company will, or will cause the Servicer to, furnish to such Underwriter, as soon as available, a copy of (i) the annual statement of compliance delivered by the Servicer pursuant to the applicable Transaction Document, (ii) the annual independent public accountants’ servicing report furnished pursuant to the applicable Transaction Document, (iii) each report of the Company regarding the Offered Securities of the applicable Series filed with the Commission under the Exchange Act or mailed to the holders of such Offered Securities and (iv) from time to time, such other information concerning such Offered Securities which may be furnished by the Company or the Servicer without undue expense and without violation of applicable law.
(f) The Company will furnish such information, execute such instruments and take such actions as may be reasonably requested by the Underwriters to qualify the Offered Securities of a Series for sale under the laws of such jurisdictions as the Underwriters may designate, to maintain such qualifications in effect so long as required for the distribution of such Offered Securities and to determine the legality of such Offered Securities for purchase by investors; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not qualified on the date of the related Terms Agreement or to take any action which would subject it to general or unlimited service of process or corporate or franchise taxation as a foreign corporation in any jurisdiction in which it is not, on the date of the related Terms Agreement, subject to such service of process or such taxation.
(g) The Company will file or cause to be filed with the Commission such Free Writing Prospectus that is either an Issuer Free Writing Prospectus (as defined in Section (9) hereof) or contains Issuer Information as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Act. All written and graphic communications relating to the Offered Certificates used prior to the availability of the Prospectus will comply with the requirements of Rule 433, including the inclusion of the legend required by Rule 433(c)(2). To the extent prepared by or on behalf of the Company or to the extent that the Underwriters have provided to the Company ABS ICM or a [Free Writing Prospectus][Preliminary Term Sheet] (as defined in Section 9 hereof) which such Underwriter has conveyed to a prospective investor, the Company will file or cause to be filed with the Commission such ABS ICM or such [Free Writing Prospectus][Preliminary Term Sheet] as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Act; provided, however, that the Company shall not be required to file (A) any [Free Writing Prospectus][Preliminary Term Sheet], if the information included therein is included or incorporated by reference in a prospectus or [Free Writing Prospectus][Preliminary Term Sheet] previously filed with the Commission that relates to the offering of the Offered Certificates, or (B) any [Free Writing Prospectus][Preliminary Term Sheet] or portion thereof that contains a description of the Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof.
(h) The Company will timely file all reports with respect to the Trust required to be filed under the Exchange Act.
(i) No fiduciary duty. Notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters, the The Seller acknowledges and agrees that in connection with (A) the offering,: terms of this Underwriting Agreement and the transaction proposed herein (ithe “Offering”) there exists (including the price of the Certificates) were negotiated at arm’s length between sophisticated parties represented by counsel; (B) no fiduciary fiduciary, advisory or agency relationship among between the Seller and each Underwriter has been created as a result of any of the transactions contemplated by this Underwriting Agreement, irrespective of whether the Underwriters have advised or are advising the Seller on other matters, (C) the Underwriters; (ii) the relationship among ’ obligations to the Seller and in respect of the Underwriters, is entirely and solely commercial, based on arms-length negotiations and the Underwriters Offering are not acting as advisors, experts or otherwise, to the Seller; (iii) notwithstanding anything set forth in this Underwriting Agreement in their entirety; and (D) it has obtained such legal, tax, accounting and other advice as it deems appropriate with respect to this Underwriting Agreement and the contrary, the Seller acknowledges that the Underwriters may have financial interests transactions contemplated hereby and any other activities undertaken in connection with the Offering in addition to the difference between the price to the public therewith, and the purchase price paid to the Seller by the Underwriters for the shares and the Underwriters have no obligation to disclose, or account to the Seller for, any of such additional financial interests. The Seller hereby waives and releases, to the fullest extent permitted by law, any claims that the Seller may have against it is not relying on the Underwriters with respect to any breach or alleged breach of fiduciary duty in connection with the Offeringsuch matters.
(j) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000, each Underwriter hereby represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Certificates Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Certificates Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates Securities to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net revenue of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the Depositor of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this representation, the expression an “offer of Certificates Securities to the public” in relation to any Certificates Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates Securities to be offered so as to enable an investor to decide to purchase or subscribe the CertificatesSecurities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
(k) Each Underwriter hereby further represents and agrees that, with respect to the United Kingdom and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000:
(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act) received by it in connection with the issue or sale of the Certificates Securities in circumstances in which Section 21(1) of the Financial Services and Markets Act does not apply to the IssuerCompany; and
(ii) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act with respect to anything done by it in relation to the Certificates Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2006-L2)
Agreements and Representations. The Company agrees with each Underwriter that:
(a) The Company will cause each of the Preliminary Prospectus and the Prospectus relating to the Offered Securities of the applicable Series to be filed in compliance with Rule 433 and Rule 424 under the Act, respectively, and, if necessary, within 4 days of the applicable Closing Date, will file a report on Form 8-K setting forth specific information concerning the Trust Assets and will promptly advise each Underwriter when such Preliminary Prospectus and such Prospectus as so supplemented have been so filed, and prior to the termination of the Offering to which such Preliminary Prospectus and Prospectus relate also will promptly advise each Underwriter (i) when any amendment to the related Registration Statement specifically relating to such Offered Securities shall have become effective or any further supplement to such Preliminary Prospectus or such Prospectus has been filed, (ii) of any request by the Commission for any amendment of such Registration Statement, Preliminary Prospectus or Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Company of any written notification with respect to the suspension of the qualification of such Offered Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of the related Registration Statement or supplement to the related Preliminary Prospectus or Prospectus (other than any amendment or supplement specifically relating to one or more Series of asset-backed securities other than the Series that includes the related Offered Securities) unless (i) the Company has given reasonable notice to the Underwriters of its intention to file any such amendment or supplement, (ii) the Company has furnished the Underwriters with a copy for their review within a reasonable time prior to filing, and (iii) the Underwriters do not reasonably object to the filing of such amendment or supplement. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Securities of the applicable Series is required to be delivered under the Act, any event occurs as a result of which the related Prospectus as then amended or supplemented would 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, in light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the related Prospectus to comply with the Act, the TIA or the rules thereunder, the Company promptly will prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.
(c) The Company will furnish to each Underwriter and counsel for the Underwriters, without charge, as many conformed copies of the related Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriters or a dealer may be required by the Act, as many copies of the related Preliminary Prospectus and the related Prospectus and any supplements thereto, as the Underwriters may reasonably request.
(d) The Company will, as between itself and the Underwriters, pay all expenses incidental to the performance of its obligations under this Agreement, including without limitation (i) expenses of preparing, printing and reproducing the related Registration Statement, the related Preliminary Prospectus, the related Prospectus, the Transaction Documents and the Offered Securities, (ii) the cost of delivering the Offered Securities of the applicable Series to the Underwriters, insured to the reasonable satisfaction of the Underwriters, (iii) the fees charged by securities rating services for rating the Offered Securities of the applicable Series, (iv) the fees and expenses of the Trustee, the Owner Trustee and/or the Indenture Trustee, as applicable, except for fees and expenses of their respective counsel which will be borne by them and (v) all other costs and expenses incidental to the performance by the Company of the Company’s obligations hereunder which are not otherwise specifically provided for in this subsection. It is understood that, except as provided in this paragraph (d) and in Section 13 hereof, each Underwriter will pay all of its own expenses, including (i) the fees of any counsel to such Underwriter, (ii) any transfer taxes on resale of any of the Offered Securities by it, (iii) any advertising expenses connected with any offers that such Underwriter may make and (iv) any expenses for the qualification of the Offered Securities of the applicable Series under “blue sky” or state securities laws, including filing fees and the fee and disbursements of counsel in connection therewith and in connection with the preparation of any Blue Sky Survey.
(e) So long as any Offered Securities of the applicable Series are outstanding, upon request of any Underwriter, the Company will, or will cause the Servicer to, furnish to such Underwriter, as soon as available, a copy of (i) the annual statement of compliance delivered by the Servicer pursuant to the applicable Transaction Document, (ii) the annual independent public accountants’ servicing report furnished pursuant to the applicable Transaction Document, (iii) each report of the Company regarding the Offered Securities of the applicable Series filed with the Commission under the Exchange Act or mailed to the holders of such Offered Securities and (iv) from time to time, such other information concerning such Offered Securities which may be furnished by the Company or the Servicer without undue expense and without violation of applicable law.
(f) The Company will furnish such information, execute such instruments and take such actions as may be reasonably requested by the Underwriters to qualify the Offered Securities of a Series for sale under the laws of such jurisdictions as the Underwriters may designate, to maintain such qualifications in effect so long as required for the distribution of such Offered Securities and to determine the legality of such Offered Securities for purchase by investors; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not qualified on the date of the related Terms Agreement or to take any action which would subject it to general or unlimited service of process or corporate or franchise taxation as a foreign corporation in any jurisdiction in which it is not, on the date of the related Terms Agreement, subject to such service of process or such taxation.
(g) The Company will file or cause to be filed with the Commission such Free Writing Prospectus that is either an Issuer Free Writing Prospectus (as defined in Section (9) hereof) or contains Issuer Information as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Act.
(h) The Company will timely file all reports with respect to the Trust required to be filed under the Exchange Act.
(i) No fiduciary duty. Notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters, the Seller acknowledges and agrees that in connection with the offering,: (i) there exists no fiduciary or agency relationship among the Seller and the Underwriters; (ii) the relationship among the Seller and the Underwriters, is entirely and solely commercial, based on arms-length negotiations and the Underwriters are not acting as advisors, experts or otherwise, to the Seller; (iii) notwithstanding anything in this Underwriting Agreement to the contrary, the Seller acknowledges that the Underwriters may have financial interests in connection with the Offering in addition to the difference between the price to the public and the purchase price paid to the Seller by the Underwriters for the shares and the Underwriters have no obligation to disclose, or account to the Seller for, any of such additional financial interests. The Seller hereby waives and releases, to the fullest extent permitted by law, any claims that the Seller may have against the Underwriters with respect to any breach or alleged breach of fiduciary duty in connection with the Offering.
(j) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000, each Underwriter hereby represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Certificates to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Certificates which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net revenue of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the Depositor of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this representation, the expression an “offer of Certificates to the public” in relation to any Certificates in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe the Certificates, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
(k) Each Underwriter hereby further represents and agrees that, with respect to the United Kingdom and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000:
(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act) received by it in connection with the issue or sale of the Certificates in circumstances in which Section 21(1) of the Financial Services and Markets Act does not apply to the Issuer; and
(ii) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act with respect to anything done by it in relation to the Certificates in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (Home Equity Mortgage Loan Asset Backed Trust, Series INABS 2007-A)
Agreements and Representations. The Company agrees with each Underwriter that:
(a) The Company will cause each of the Preliminary Prospectus and the Prospectus relating to the Offered Securities of the applicable Series to be filed in compliance with Rule 433 and Rule 424 under the Act, respectively, and, if necessary, within 4 days of the applicable Closing Date, will file a report on Form 8-K setting forth specific information concerning the Trust Assets and will promptly advise each Underwriter when such Preliminary Prospectus and such Prospectus as so supplemented have been so filed, and prior to the termination of the Offering to which such Preliminary Prospectus and Prospectus relate also will promptly advise each Underwriter (i) when any amendment to the related Registration Statement specifically relating to such Offered Securities shall have become effective or any further supplement to such Preliminary Prospectus or such Prospectus has been filed, (ii) of any request by the Commission for any amendment of such Registration Statement, Preliminary Prospectus or Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Company of any written notification with respect to the suspension of the qualification of such Offered Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of the related Registration Statement or supplement to the related Preliminary Prospectus or Prospectus (other than any amendment or supplement specifically relating to one or more Series of asset-backed securities other than the Series that includes the related Offered Securities) unless (i) the Company has given reasonable notice to the Underwriters of its intention to file any such amendment or supplement, (ii) the Company has furnished the Underwriters with a copy for their review within a reasonable time prior to filing, and (iii) the Underwriters do not reasonably object to the filing of such amendment or supplement. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Securities of the applicable Series is required to be delivered under the Act, any event occurs as a result of which the related Prospectus as then amended or supplemented would 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, in light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the related Prospectus to comply with the Act, the TIA or the rules thereunder, the Company promptly will prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.
(c) The Company will furnish to each Underwriter and counsel for the Underwriters, without charge, as many conformed copies of the related Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriters or a dealer may be required by the Act, as many copies of the related Preliminary Prospectus and the related Prospectus and any supplements thereto, as the Underwriters may reasonably request.
(d) The Company will, as between itself and the Underwriters, pay all expenses incidental to the performance of its obligations under this Agreement, including without limitation (i) expenses of preparing, printing and reproducing the related Registration Statement, the related Preliminary Prospectus, the related Prospectus, the Transaction Documents and the Offered Securities, (ii) the cost of delivering the Offered Securities of the applicable Series to the Underwriters, insured to the reasonable satisfaction of the Underwriters, (iii) the fees charged by securities rating services for rating the Offered Securities of the applicable Series, (iv) the fees and expenses of the Trustee, the Owner Trustee and/or the Indenture Trustee, as applicable, except for fees and expenses of their respective counsel which will be borne by them and (v) all other costs and expenses incidental to the performance by the Company of the Company’s obligations hereunder which are not otherwise specifically provided for in this subsection. It is understood that, except as provided in this paragraph (d) and in Section 13 hereof, each Underwriter will pay all of its own expenses, including (i) the fees of any counsel to such Underwriter, (ii) any transfer taxes on resale of any of the Offered Securities by it, (iii) any advertising expenses connected with any offers that such Underwriter may make and (iv) any expenses for the qualification of the Offered Securities of the applicable Series under “blue sky” or state securities laws, including filing fees and the fee and disbursements of counsel in connection therewith and in connection with the preparation of any Blue Sky Survey.
(e) So long as any Offered Securities of the applicable Series are outstanding, upon request of any Underwriter, the Company will, or will cause the Master Servicer to, furnish to such Underwriter, as soon as available, a copy of (i) the annual statement of compliance delivered by the Master Servicer pursuant to the applicable Transaction Document, (ii) the annual independent public accountants’ servicing report furnished pursuant to the applicable Transaction Document, (iii) each report of the Company regarding the Offered Securities of the applicable Series filed with the Commission under the Exchange Act or mailed to the holders of such Offered Securities and (iv) from time to time, such other information concerning such Offered Securities which may be furnished by the Company or the Master Servicer without undue expense and without violation of applicable law.
(f) The Company will furnish such information, execute such instruments and take such actions as may be reasonably requested by the Underwriters to qualify the Offered Securities of a Series for sale under the laws of such jurisdictions as the Underwriters may designate, to maintain such qualifications in effect so long as required for the distribution of such Offered Securities and to determine the legality of such Offered Securities for purchase by investors; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not qualified on the date of the related Terms Agreement or to take any action which would subject it to general or unlimited service of process or corporate or franchise taxation as a foreign corporation in any jurisdiction in which it is not, on the date of the related Terms Agreement, subject to such service of process or such taxation.
(g) The Company will file or cause to be filed with the Commission such Free Writing Prospectus that is either an Issuer Free Writing Prospectus (as defined in Section (9) hereof) or contains Issuer Information as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Act.
(h) The Company will timely file all reports with respect to the Trust required to be filed under the Exchange Act.
(i) No fiduciary duty. Notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters, the Seller acknowledges and agrees that in connection with the offering,: (i) there exists no fiduciary or agency relationship among the Seller and the Underwriters; (ii) the relationship among the Seller and the Underwriters, is entirely and solely commercial, based on arms-length negotiations and the Underwriters are not acting as advisors, experts or otherwise, to the Seller; (iii) notwithstanding anything in this Underwriting Agreement to the contrary, the Seller acknowledges that the Underwriters may have financial interests in connection with the Offering in addition to the difference between the price to the public and the purchase price paid to the Seller by the Underwriters for the shares and the Underwriters have no obligation to disclose, or account to the Seller for, any of such additional financial interests. The Seller hereby waives and releases, to the fullest extent permitted by law, any claims that the Seller may have against the Underwriters with respect to any breach or alleged breach of fiduciary duty in connection with the Offering.
(j) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000, each Underwriter hereby represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Certificates to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Certificates which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net revenue of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the Depositor of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this representation, the expression an “offer of Certificates to the public” in relation to any Certificates in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe the Certificates, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
(k) Each Underwriter hereby further represents and agrees that, with respect to the United Kingdom and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000:
(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act) received by it in connection with the issue or sale of the Certificates in circumstances in which Section 21(1) of the Financial Services and Markets Act does not apply to the Issuer; and
(ii) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act with respect to anything done by it in relation to the Certificates in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (Home Equity Mortgage Loan Asset-Backed Trust, Series INABS 2006-A)
Agreements and Representations. The Company agrees with each Underwriter that:
(a) The Company will cause each of the Preliminary Prospectus and the Prospectus relating to the Offered Securities of the applicable Series to be filed in compliance with Rule 433 and Rule 424 under the Act, respectively, and, if necessary, within 4 days of the applicable Closing Date, will file a report on Form 8-K setting forth specific information concerning the Trust Assets and will promptly advise each Underwriter when such Preliminary Prospectus and such Prospectus as so supplemented have been so filed, and prior to the termination of the Offering to which such Preliminary Prospectus and Prospectus relate also will promptly advise each Underwriter (i) when any amendment to the related Registration Statement specifically relating to such Offered Securities shall have become effective or any further supplement to such Preliminary Prospectus or such Prospectus has been filed, (ii) of any request by the Commission for any amendment of such Registration Statement, Preliminary Prospectus or Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Company of any written notification with respect to the suspension of the qualification of such Offered Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of the related Registration Statement or supplement to the related Preliminary Prospectus or Prospectus (other than any amendment or supplement specifically relating to one or more Series of asset-backed securities other than the Series that includes the related Offered Securities) unless (i) the Company has given reasonable notice to the Underwriters of its intention to file any such amendment or supplement, (ii) the Company has furnished the Underwriters with a copy for their review within a reasonable time prior to filing, and (iii) the Underwriters do not reasonably object to the filing of such amendment or supplement. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Securities of the applicable Series is required to be delivered under the Act, any event occurs as a result of which the related Prospectus as then amended or supplemented would 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, in light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the related Prospectus to comply with the Act, the TIA or the rules thereunder, the Company promptly will prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.
(c) The Company will furnish to each Underwriter and counsel for the Underwriters, without charge, as many conformed copies of the related Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriters or a dealer may be required by the Act, as many copies of the related Preliminary Prospectus and the related Prospectus and any supplements thereto, as the Underwriters may reasonably request.
(d) The Company will, as between itself and the Underwriters, pay all expenses incidental to the performance of its obligations under this Agreement, including without limitation (i) expenses of preparing, printing and reproducing the related Registration Statement, the related Preliminary Prospectus, the related Prospectus, the Transaction Documents and the Offered Securities, (ii) the cost of delivering the Offered Securities of the applicable Series to the Underwriters, insured to the reasonable satisfaction of the Underwriters, (iii) the fees charged by securities rating services for rating the Offered Securities of the applicable Series, (iv) the fees and expenses of the Trustee, the Owner Trustee and/or the Indenture Trustee, as applicable, except for fees and expenses of their respective counsel which will be borne by them and (v) all other costs and expenses incidental to the performance by the Company of the Company’s obligations hereunder which are not otherwise specifically provided for in this subsection. It is understood that, except as provided in this paragraph (d) and in Section 13 hereof, each Underwriter will pay all of its own expenses, including (i) the fees of any counsel to such Underwriter, (ii) any transfer taxes on resale of any of the Offered Securities by it, (iii) any advertising expenses connected with any offers that such Underwriter may make and (iv) any expenses for the qualification of the Offered Securities of the applicable Series under “blue sky” or state securities laws, including filing fees and the fee and disbursements of counsel in connection therewith and in connection with the preparation of any Blue Sky Survey.
(e) So long as any Offered Securities of the applicable Series are outstanding, upon request of any Underwriter, the Company will, or will cause the Servicer to, furnish to such Underwriter, as soon as available, a copy of (i) the annual statement of compliance delivered by the Servicer pursuant to the applicable Transaction Document, (ii) the annual independent public accountants’ servicing report furnished pursuant to the applicable Transaction Document, (iii) each report of the Company regarding the Offered Securities of the applicable Series filed with the Commission under the Exchange Act or mailed to the holders of such Offered Securities and (iv) from time to time, such other information concerning such Offered Securities which may be furnished by the Company or the Servicer without undue expense and without violation of applicable law.
(f) The Company will furnish such information, execute such instruments and take such actions as may be reasonably requested by the Underwriters to qualify the Offered Securities of a Series for sale under the laws of such jurisdictions as the Underwriters may designate, to maintain such qualifications in effect so long as required for the distribution of such Offered Securities and to determine the legality of such Offered Securities for purchase by investors; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not qualified on the date of the related Terms Agreement or to take any action which would subject it to general or unlimited service of process or corporate or franchise taxation as a foreign corporation in any jurisdiction in which it is not, on the date of the related Terms Agreement, subject to such service of process or such taxation.
(g) The Company will file or cause to be filed with the Commission such Free Writing Prospectus that is either an Issuer Free Writing Prospectus (as defined in Section (9) hereof) or contains Issuer Information as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Act.
(h) The Company will timely file all reports with respect to the Trust required to be filed under the Exchange Act.
(i) No fiduciary duty. Notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters, the Seller acknowledges and agrees that in connection with the offering,: (i) there exists no fiduciary fiduciary, financial advisory or agency relationship among the Seller and the Underwriters; (ii) the relationship among the Seller and the Underwriters, is entirely and solely commercial, based on arms-length negotiations and the Underwriters are not acting as advisors, experts or otherwise, to the Seller; (iii) notwithstanding anything in this Underwriting Agreement to the contrary, the Seller acknowledges that the Underwriters may have financial interests in connection with the Offering in addition to the difference between the price to the public and the purchase price paid to the Seller by the Underwriters for the shares and the Underwriters have no obligation to disclose, or account to the Seller for, any of such additional financial interests. The Seller hereby waives and releases, to the fullest extent permitted by law, any claims that the Seller may have against the Underwriters with respect to any breach or alleged breach of fiduciary duty in connection with the Offering. Additionally, the Underwriters are not advising the Seller or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction, and the Seller shall be responsible for making its own independent investigation of such matters.
(j) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000, each Underwriter hereby represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Certificates to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Certificates which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net revenue of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the Depositor of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this representation, the expression an “offer of Certificates to the public” in relation to any Certificates in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates to be offered so as to enable an investor to decide to purchase or subscribe the Certificates, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
(k) Each Underwriter hereby further represents and agrees that, with respect to the United Kingdom and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000:
(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act) received by it in connection with the issue or sale of the Certificates in circumstances in which Section 21(1) of the Financial Services and Markets Act does not apply to the Issuer; and
(ii) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act with respect to anything done by it in relation to the Certificates in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series INABS 2006-E)
Agreements and Representations. The Company agrees with each Underwriter that:
(a) The Company has caused and will cause each of the Preliminary Free Writing Prospectus and the Prospectus relating to the Offered Securities of the applicable Series to be filed in compliance with Rule 433 and Rule 424 under the Act, respectively, and, if necessary, within 4 days of the applicable Closing Date, will file a report on Form 8-K setting forth specific information concerning the Trust Assets and will promptly advise each Underwriter when such Preliminary Free Writing Prospectus and such Prospectus as so supplemented have been so filed, and prior to the termination of the Offering to which such Preliminary Free Writing Prospectus and Prospectus relate also will promptly advise each Underwriter (i) when any amendment to the related Registration Statement specifically relating to such Offered Securities shall have become effective or any further supplement to such Preliminary Prospectus or such Prospectus has been filed, (ii) of any request by the Commission for any amendment of such Registration Statement, Preliminary Free Writing Prospectus or Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such Registration Statement or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Company of any written notification with respect to the suspension of the qualification of such Offered Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment of the related Registration Statement or supplement to the related Preliminary Free Writing Prospectus or Prospectus (other than any amendment or supplement specifically relating to one or more Series of asset-backed securities other than the Series that includes the related Offered Securities) unless (i) the Company has given reasonable notice to the Underwriters of its intention to file any such amendment or supplement, (ii) the Company has furnished the Underwriters with a copy for their review within a reasonable time prior to filing, and (iii) the Underwriters do not reasonably object to the filing of such amendment or supplement. The Company will use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered Securities of the applicable Series is required to be delivered under the Act, any event occurs as a result of which the related Prospectus as then amended or supplemented would 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, in light of the circumstances under which they were made, not misleading, or if it shall be necessary at any time to amend or supplement the related Prospectus to comply with the Act, the TIA or the rules thereunder, the Company promptly will prepare and file with the Commission, subject to paragraph (a) of this Section 5, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.
(c) The Company will furnish to each Underwriter and counsel for the Underwriters, without charge, as many conformed copies of the related Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriters or a dealer may be required by the Act, as many copies of the related Preliminary Prospectus and the related Prospectus and any supplements thereto, as the Underwriters may reasonably request.
(d) The Company will, as between itself and the Underwriters, pay all expenses incidental to the performance of its obligations under this Agreement, including without limitation (i) expenses of preparing, printing and reproducing the related Registration Statement, the related Preliminary Free Writing Prospectus, the related Prospectus, the Transaction Documents and the Offered Securities, (ii) the cost of delivering the Offered Securities of the applicable Series to the Underwriters, insured to the reasonable satisfaction of the Underwriters, (iii) the fees charged by securities rating services for rating the Offered Securities of the applicable Series, (iv) the fees and expenses of the Trustee, the Owner Trustee and/or the Indenture Trustee, as applicable, except for fees and expenses of their respective counsel which will be borne by them and (v) all other costs and expenses incidental to the performance by the Company of the Company’s obligations hereunder which are not otherwise specifically provided for in this subsection. It is understood that, except as provided in this paragraph (d) and in Section 13 hereof, each Underwriter will pay all of its own expenses, including (i) the fees of any counsel to such Underwriter, (ii) any transfer taxes on resale of any of the Offered Securities by it, (iii) any advertising expenses connected with any offers that such Underwriter may make and (iv) any expenses for the qualification of the Offered Securities of the applicable Series under “blue sky” or state securities laws, including filing fees and the fee and disbursements of counsel in connection therewith and in connection with the preparation of any Blue Sky Survey.
(e) So long as any Offered Securities of the applicable Series are outstanding, upon request of any Underwriter, the Company will, or will cause the Servicer to, furnish to such Underwriter, as soon as available, a copy of (i) the annual statement of compliance delivered by the Servicer pursuant to the applicable Transaction Document, (ii) the annual independent public accountants’ servicing report furnished pursuant to the applicable Transaction Document, (iii) each report of the Company regarding the Offered Securities of the applicable Series filed with the Commission under the Exchange Act or mailed to the holders of such Offered Securities and (iv) from time to time, such other information concerning such Offered Securities which may be furnished by the Company or the Servicer without undue expense and without violation of applicable law.
(f) The Company will furnish such information, execute such instruments and take such actions as may be reasonably requested by the Underwriters to qualify the Offered Securities of a Series for sale under the laws of such jurisdictions as the Underwriters may designate, to maintain such qualifications in effect so long as required for the distribution of such Offered Securities and to determine the legality of such Offered Securities for purchase by investors; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction where it is not qualified on the date of the related Terms Agreement or to take any action which would subject it to general or unlimited service of process or corporate or franchise taxation as a foreign corporation in any jurisdiction in which it is not, on the date of the related Terms Agreement, subject to such service of process or such taxation.
(g) The Company will file or cause to be filed with the Commission such Free Writing Prospectus that is either an Issuer Free Writing Prospectus (as defined in Section (9) hereof) or contains Issuer Information as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Act. All written and graphic communications relating to the Offered Certificates used prior to the availability of the Prospectus will comply with the requirements of Rule 433, including the inclusion of the legend required by Rule 433(c)(2). To the extent prepared by or on behalf of the Company or to the extent that the Underwriters have provided to the Company ABS ICM or a [Free Writing Prospectus][Preliminary Term Sheet] (as defined in Section 9 hereof) which such Underwriter has conveyed to a prospective investor, the Company will file or cause to be filed with the Commission such ABS ICM or such [Free Writing Prospectus][Preliminary Term Sheet] as soon as reasonably practicable after the date of this Agreement, but in any event, not later than required pursuant to Rules 426 or 433, respectively, of the Act; provided, however, that the Company shall not be required to file (A) any [Free Writing Prospectus][Preliminary Term Sheet], if the information included therein is included or incorporated by reference in a prospectus or [Free Writing Prospectus][Preliminary Term Sheet] previously filed with the Commission that relates to the offering of the Offered Certificates, or (B) any [Free Writing Prospectus][Preliminary Term Sheet] or portion thereof that contains a description of the Certificates or the offering of the Offered Certificates which does not reflect the final terms thereof.
(h) The Company will timely file all reports with respect to the Trust required to be filed under the Exchange Act.
(i) No Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(i) The Underwriters have been retained solely to act as underwriters in connection with the sale of the Company’s securities and that no fiduciary, advisory or agency relationship between the Company and the Underwriters has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Underwriters have advised or are advising the Company on other matters;
(ii) the price of the securities set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the Underwriters and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(iii) it has been advised that the Underwriters and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Underwriters have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
(iv) it waives, to the fullest extent permitted by law, any claims it may have against the Underwriters for breach of fiduciary duty. duty or alleged breach of fiduciary duty and agrees that the Underwriters shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders, employees or creditors of the Company.
(j) Notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters, the Seller acknowledges and agrees that in connection with the offering,: (i) there exists no fiduciary fiduciary, financial advisory or agency relationship among the Seller and the Underwriters; (ii) the relationship among the Seller and the Underwriters, is entirely and solely commercial, based on arms-length negotiations and the Underwriters are not acting as advisors, experts or otherwise, to the Seller; (iii) notwithstanding anything in this Underwriting Agreement to the contrary, the Seller acknowledges that the Underwriters may have financial interests in connection with the Offering in addition to the difference between the price to the public and the purchase price paid to the Seller by the Underwriters for the shares and the Underwriters have no obligation to disclose, or account to the Seller for, any of such additional financial interests. The Seller hereby waives and releases, to the fullest extent permitted by law, any claims that the Seller may have against the Underwriters with respect to any breach or alleged breach of fiduciary duty in connection with the Offering. Additionally, the Underwriters are not advising the Seller or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction, and the Seller shall be responsible for making its own independent investigation of such matters.
(jk) In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”) and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000, each Underwriter hereby represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of Certificates Securities to the public in that Relevant Member State prior to the publication of a prospectus in relation to the Certificates Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of Certificates Securities to the public in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net revenue of more than €50,000,000, as shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the Depositor of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this representation, the expression an “offer of Certificates Securities to the public” in relation to any Certificates Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Certificates Securities to be offered so as to enable an investor to decide to purchase or subscribe the CertificatesSecurities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant implementing measure in each Relevant Member State.
(k) Each Underwriter hereby further represents and agrees that, with respect to the United Kingdom and with respect to any Class of Offered Securities of a Series which is offered with a minimum denomination of less than $100,000:
(i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act) received by it in connection with the issue or sale of the Certificates Securities in circumstances in which Section 21(1) of the Financial Services and Markets Act does not apply to the IssuerCompany; and
(ii) it has complied and will comply with all applicable provisions of the Financial Services and Markets Act with respect to anything done by it in relation to the Certificates Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (IndyMac Residential Mortgage-Backed Trust, Series 2007-L1)